Court-Appointed 

Experts: 

Defining the Role of 

Experts Appointed 

Under Federal Rule of 

Evidence 706 

Federal Judicial Center ~ 
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Edward R. Becker, U.s. Court of Appeals for the Third Circuit 

Judge J. Harvie Wilkinson III, U.s. Court of Appeals for the Fourth Circuit 

Judge Martin L. C. Feldman, U.s. District Court for the Eastern District of Louisiana 

Chief Judge Diana E. Murphy, U.s. District Court for the District of Minnesota 

Chief Judge Michael A. Telesca, U.s. District Court for the Western District of New York 

Judge Elizabeth L. Perris, U.S. Bankruptcy Court for the District of Oregon 

Hon. L. Ralph Mecham, Director of the Administrative Office of the U.s. Courts 

Director 

Judge William W Schwarzer 

Deputy Director 

Russell R. Wheeler 

Division Directors 

Gordon Bermant, Planning & Technology Division 

William B. Eldridge, Research Division 

Denis J. HaupUy, Judicial Education Division 

Sylvan A. Sobel, Publications & Media Division 

Steven A. Wolvek, Court Education Division 
Court-Appointed Experts: 

Defining the Role of 

Experts Appointed Under 

Federal Rule of Evidence 706 

Joe S. Cecil &: Thomas E. Willging 

Federal Judicial Center 1993 

This publication is a product of a study undertaken in furtherance of the 

Center's statutory mission to conduct and stimulate research a\)d development on matters of judicial administration. The analyses, conclusions, 

and points of view are those of the authors. On matters of pOlicy, the 

Center speaks only through its Board. 
Contents 


Purpose 1 


Chapter 1: Summary of Findings and Overview of Report 3 


Primary Issue 3 


Methodology 3 


Summary of Findings 4 


Overview of Report 5 


Chapter 2: Use and Nonuse of Court-Appointed Experts 7 


Use of Court-Appointed Experts 7 


Judicial Receptivity to Appointment of Experts 11 


Reasons for Appointing Experts 12 


To aid decision making 12 


To aid settlement 15 


Reasons for Failure to Appoint an Expert 18 ~, 

Infrequency of cases requiring extraordinary assistance 18 


Presentation of Expert Vpinion in Court 47 ; 


Sequencing the testimony of the court-appointed expert 5t 


Respect for the adversarial system 20 


Difficulty identifying an expert suitable for appointment 21 


Securing compensation for an expert 22 


Lack of early recognition that appointment is needed 22 


Lack of awareness of the procedure 23 


Chapter 3: Identification and Appointment of Experts 25 


Timing of the Appointment 25 


Initiation of the Appointment of the Expert 29 


Selection of the Appointed Expert 31 


Chapter 4: Communication with the Appointed Expert 35 


Instruction of the Appointed Expert 35 


Ex Parte Communication 39 


Communication between the judge and the expert 39 


Communication between the parties and the expert 43 


Pretrial Reports and Depositions 45 


Frequency and nature of testimony 47 


Advising jury of court-appointed status 48 


Effect of the testimony of the appointed expert 52 


Summary 56 


iii 
Purpose 

This study grew out of an inquiry by a member of the Center's Board 

asking why judges so rarely appoint experts under Rule 706 of the 

Federal Rules of Evidence. In discussing with judges the reasons for infrequent appointments, we also learned of techniques and procedures 

that may aid judges when considering whether to appoint an expert or 

when managing an expert who has been appointed. These suggestions 

are collected in the final chapter of this report. 

1 
Chapter 1 

Summary of Findings and Overview 

of Report 

Primary Issue 

Evidence involving complex issues of science and technology plays an 

increasing role in federallitigation.1 Appointing an expert is often suggested as a means for the court to enhance its ability to deal with such issues, yet court-appointed experts are infrequently used.2 We seek to answer the question "Why are court-appointed experts, as authorized by 

Federal Rule of Evidence 706, employed so infrequently?" 

Methodology 

We employed two distinct research methods. First, we sent a cover letter 

(Appendix A) and a one-page questionnaire (Appendix B) to each active 

federal district court judge asking the follOwing questions: "Have you 

appointed an expert under the authority of Rule 706 of the Federal Rules 

of Evidence?"3 and "Are experts appointed under Rule 706 likely to be 

helpful in certain types of cases?" The questionnaire was intended to determine the extent to which the authority to appoint an expert under 

Rule 706 had been employed and the extent to which opportunities for 

such appointments exist. 

Second, we asked those judges who had made such appointments to 

participate in a telephone interview concerning their experiences with 

court-appointed experts (Appendices C and D). We sought to identify 

uses of Rule 706 that judges have found appropriate,4 and, at the same 

1. The Federal Courts Study Comm. Report, at 97 (April 2, 1990) ("Economic, 

statistical, technological, and natural and social scientific data are becoming 

increasingly important in both routine and complex litigation."). 

2. See, e.g., id.; 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 

113.06[Ol], at 13-34 (1992 & Supp. 1992) [hereinafter Weinstein's Evidence]; 

Enhancing the Availability of Reliable and Impartial Scientific and Technical 

Expertise to the Federal Courts: A Report to the Carnegie Commission on 

Science, Technology, and Government (AAAS/ ABA National Conference of 

Lawyers and Scientists Task Force on Science and Technology in the Courts) 

(September 1991). 

3. Judges who answered "yes" were asked about the number of appointments 

made. 

4. This investigation is focused on the exercise of authority to appoint an expert under Rule 706. There are several other sources of authority that permit a 

3 
4 

time, identify reasons for nonuse. The telephone interviews lasted approximately thirty minutes and addressed (1) the judges' reasons for appointing an expert; (2) the timing and circumstances of the appointment 

of an expert; (3) the interaction of an expert with the court and with parties; (4) the manner in which an appointment affects the outcome of litigation; and (5) suggestions for improvements in the rule and the process 

of appointing experts in genera1.5 We also contacted judges who had not 

appointed experts but who had indicated, when responding to the 

mailed questionnaire, strong feelings regarding such practices. We asked 

these judges how they responded to a number of the situations that the 

appointing judges had identified as being suitable for making an appointment (Appendix E). All judges were asked why so few experts are 

appointed. 

Summary of Findings 

In brief, we found that much of the uneasiness with court-appointed experts arises from the difficulty in accommodating such experts in a court 

court to appoint an expert, each envisioning a somewhat different role for the 

expert. Rule 706 most directly addresses the role of the appointed expert as a testifying witness; the structure, language, and procedures of Rule 706 specifically 

contemplate the use of appOinted experts to present evidence to the trier of fact. 

Underlying this authority is the broader inherent authority of the court to appoint experts who are necessary to enable the court to carry out its duties, including authority to appoint a technical advisor to consult with the court during the 

decision-making process. See, e.g., Reilly v. United States, 863 F.2d 149 (1st Cir. 

1988). In addition, there exists separate authority to appoint a special master under Fed. R. Civ. P. 53, and other statutory authority to provide expert assistance 

for indigent criminal defendants. 18 U.S.c. § 3006A(e) (1988). We found instances 

of experts appointed under authority of Rule 706 serving one or more of these 

functions apart from preparing to offer testimony. See also Tom Willging, CourtAppointed Experts 1-4, 18-23 (Federal Judicial Center 1986). 

5. Before the telephone interviews, the judges were sent a list of the issues we 

wished to address along with a letter inviting their participation. Judges who had 

appointed more than one expert were asked to describe the circumstances of their 

most recent appointments. We spoke with seventy-three of the eighty-six judges 

who indicated that they had appointed experts. Of the seventy-three judges, five 

were not interviewed when they indicated that they relied primarily on other 

authority in making the appointments. Thus, the total number of completed 

interviews was sixty-eight. Not all judges answered all of the questions in the 

surveys and interviews, nor did we ask the same questions of all of those interviewed. Therefore, the numbers of judges answering specific questions varies 

throughout the report. 

Court-Appointed Experts 
system that values, and generally anticipates, adversarial presentation of 

evidence. More specifically, we found the following: 

• 	 Judges view the appointment of an expert as an extraordinary activity that is appropriate only in rare instances in which the traditional 

adversarial process has failed to permit an informed assessment of 

the facts. We found no evidence of general disenchantment with the 

adversarial process by judges who had made such appointments. 

• 	 Parties rarely suggest appointing an expert and typically do not 

participate in the nomination of appointed experts. 

• 	 The opportunity to appoint an expert is often hindered by failure to 

recognize the need for such assistance until the eve of trial. 

• 	 Compensation of an expert often obstructs an appointment, especially when one of the parties is indigent. 

• 	 Judges report little difficulty in identifying persons to serve as 

court-appointed experts, largely because of the judges' willingness 

to use personal and professional relationships to aid the recruitment 

process. 

• 	 Ex parte communication between judges and appointed experts occurs frequently, usually with the consent of the parties. 

• 	 The testimony or report presented by an appointed expert exerts a 

strong influence on the outcome of litigation. 

Overview of Report 

In Chapters 2 through 5 of this report, we present the results of our mail 

survey and a discussion of our interviews with the judges about the 

origination, selection, pretrial and trial activity, and compensation of the 

appointed experts. In Chapter 6 we discuss alternative approaches to the 

problems, gleaned primarily from interviews with judges who had not 

used court-appointed experts. Finally, in Chapter 7 we discuss possible 

changes to Rule 706 and outline a pretrial procedure that facilitates the 

early identification of disputed issues arising from scientific and technical evidence, clarifies and narrows disputes, and eases appointment of an 

expert when an independent source of information is necessary for a 

principled resolution of a conflict. 

Summary ofFindings and Overview of Report 5 
Chapter 2 

Use and Nonuse of Court-Appointed 

Experts 

• 

Use of Court-Appointed Experts 

Many have mentioned that the use of court-appointed experts appears to 

be rare, an impression based on the infrequent references to such experts 

in published cases.6 To obtain an accurate assessment of the extent to 

which court-appointed experts have been employed, we sent a one-page 

questionnaire (Appendix B) to all active federal district court judges? 

As indicated in Table 1, eighty-six judges, or 20% of those responding 

to the survey, revealed that they had appointed an expert on one or more 

occasions.8 The figures indicate that, taken together, these judges made 

approximately 225 appointments, far more than suggested by the paucity 

of published opinions dealing with the exercise of this authority.9 

6. Weinstein's Evidence, supra note 2, at '11706-l3. The editors of the Manual 

for Complex Litigation note that "[e]ven in complex litigation" use of a court-appointed expert, special master, or magistrate judge "is the exception and not the 

rule." Manual for Complex Litigation, Second § 21.5 (1985). 

7. Questionnaires were sent to 537 active federal district court judges; 431 

judges responded (a response rate of 80%). 

8. This figure includes some judges who made appointments under Rule 706 

that could have taken place under alternative authority. For example, we learned 

in telephone interviews that nine of the experts appointed under Rule 706 functioned also as special masters, or examined parties to determine fitness to stand 

trial. Although these appointments could have been made under alternative authority, some judges made the appointment under Rule 706 to ensure that the 

appointed expert was available to testify and be cross-examined. When a judge 

indicated that an appointment was pursued under authority of Rule 706 the case 

was included in the study. 

9. Determining an exact number of appointments was not possible, since the 

questionnaire asked judges to indicate the range of appointment activity in which 

they felL By multiplying the midpoint of each range by the number of judges 

within that range, we estimate that there were 225 instances in which experts 

were appointed under authority of Rule 706. By comparison, computer searches 

for references to Rule 706 at the time of the initial mail survey (January 1988) 

showed only fifty-eight reported cases in which the rule was mentioned, 

including forty-seven reported cases in which an appointment was made or discussed extensively. Reported cases are likely to underestimate the degree of appointment activity since reported cases address only disputed issues. If an ap7 
I 

'"I 2-4 

52% of sample 

(45 judges) 

::§ 5-9 ~ 

~ 10-19 v 

... > 20 

~ i. 0 10 20 30 40 50 

Table 1 

Have you appointed an expert under Rule 706? 

NO 

80% 

(345 judges) 

Number of judges appointing expert 

Of the eighty-six judges reporting appointment of an expert, just over 

half had appointed an expert on only one occasion. Only four judges appointed an expert in ten or more cases, a frequency that suggests a 

somewhat systematic use of appointed experts to deal with difficult scientific or technical issues. In fact, the one judge who had appointed an 

expert in more than twenty cases employs this mechanism as a standard 

part of a pretrial procedure in cases in which medical experts offer diapointment was made in a case that settled, a published opinion that mentions the 

appointment is even less likely. See Evolving Role of Stiltistical Assessments as 

Evidence in the Courts, at 171 (Stephen E. Fienberg ed., 1988) ("One of the difficulties in trying to assess the potential value of the use of court-appointed experts 

is that their greatest value may occur prior to trial, especially if they are able to 

resolve conflicting analyses in reports by opposing statistical experts. But in such 

cases the likelihood of a pretrial settlement is high, and for such cases there are 

no published opinions or other easily accessible records."). 

8 Court-Appointed Experts 
metrically opposed testimony concerning the existence of an asbestos-related injury.l0 

Ouring the telephone interviews we asked the judges to describe the 

cases in which they had appointed experts under authority of Rule 706.11 

Three circumstances accounted for almost two-thirds of the appointments: medical experts appointed in personal injury cases, engineering experts appOinted in patent and trade secret cases, and accounting experts appOinted in commercial cases. The appointed expert usually 

served a different function in each type of case. 

The expertise most commonly sought by the courts, required in 

twenty-four cases, was that of medical professionals concerning the nature and extent of injuries. In thirteen of these cases experts were appointed to help assess claims for injuries arising from improper medical 

care. 12 In eight other cases the appointed expert considered injuries 

arising from defective products, five of which were tort claims based on 

injuries caused by exposure to toxic chemical products.13 

The services of the appointed medical experts varied with the type of 

personal injury case. In cases arising from claims of improper medical 

care, the parties' experts usually were in complete opposition and the 

appointed expert advised the court on the proper standards of medical 

care and treatment. 14 Ouring the product liability litigation the appointed 

medical expert addressed the cause and extent of injuries. In four of five 

tort cases about toxic products, the appointed expert addressed the 

likelihood that the product caused the injuries. 

10. See Carl B. Rubin & Laura Ringenbach, The Use of Court Experts in 

Asbestos Litigation, 137 F.R.D. 35 (1991). 

11. All judges who appointed experts were asked to describe the nature of the 

case and the issues addressed by the expert. Judges who made more than one 

appointment were asked to describe all the cases in which an expert had been 

appointed. When judges mentioned more than one case, the specific issues addressed by the expert were explored in detail only for the most recent case. 

12. Most of these cases involved medical malpractice, but three cases involved 

claims against insurance companies for compensation for, or permission to 

undergo, medical treatment. For purposes of this study we combined these cases 

with malpractice cases since in each case the appointed expert was addressing 

the proper treatment under accepted medical standards. Medical experts were 

appointed in several cases that did not involve personal injuries. In three cases 

psychiatrists or psychologists were appointed to address the competency of a 

party to sue or to stand trial. 

13. Two of the remaining product liability cases claimed injuries arising from 

swine flu inoculations. 

14. An exception concerned an instance in which a medical expert was appointed to resolve a conflict over a diagnosis by reading an X ray. 

Use and Nonuse of Court-Appointed Experts 9 
10 

In fifteen cases judges sought experts with skills in engineering. IS 

Twelve of these cases raised questions of patentability, patent infringement, or technical issues surrounding trade secret protection.16 Unlike 

the personal injury cases in which the expert was appointed to resolve a 

dispute among the parties' experts, in these cases the expert typically 

was appointed to interpret technical information for the judge. Almost 

all of these cases were bench trials, and the parties agreed to the appointment of an expert to enhance the court's ability to understand the 

technology underlying the dispute. 

In twelve cases involving disputes over contracts or failed commercial 

enterprises, judges sought the assistance of accountants,17 Often these 

cases involved complex financial transactions, and the expert was appointed to assist the court in placing a value on a claim. In reaching such 

an assessment, the appointed expert often functioned like a special master, reviewing records and preparing a report that was submitted as evidence in the case.I8 In several cases the judge asked the appointed expert 

not to place a value on a disputed claim, but to address acceptable 

standards of accounting that should be followed in making such a determination, or to educate the court regarding acceptable methods for 

making such a determination. 

The remainder of the appointments were scattered across a variety of 

specialties and types of cases. In two cases economists were appointed to 

aid in class certification; in two cases handwriting experts were appointed to verify signatures on legal documents; two statisticians were 

appointed, one to aid in a case challenging the accuracy of the Census 

and one in a case challenging a congressional reapportionment plan; and 

15. We include in this category experts who had knowledge of the development of computer hardware and software (accounts for six cases). 

16. For example, in one case involving trade secrets two employees left a 

company and started a competing enterprise. Their former company claimed that 

they took and used proprietary software in their new company. Such cases are 

similar to patent cases in that in both types of cases the judge sought assistance in 

understanding the underlying technology. The three remaining cases involved 

disputes over construction in which the expert offered an independent assessment of whether a completed structure conformed to the contract. 

17. We include in this category those appOinted experts who were identified as 

accountants or described as prOviding accounting services. Some may have 

lacked formal training as accountants. We did not inquire about the credentials of 

the appointed experts. 

18. Some judges expressed a preference for appointing an expert under Rule 

706, as opposed to a special master under Fed. R. Civ. P. 53, so the accountant 

could testify in court and be cross-examined by the parties. 

Court-Appointed Experts 
two attorneys were appointed, one to address the reasonableness of a request for attorneys' fees and one to address mixed questions of law and 

fact surrounding patentability. Other appointments included a real estate 

appraiser to aid in a condemnation proceeding, a geologist to advise the 

court on the likel~hood of seismic activity in a construction area, a 

botanist to address plant growth in wetlands, a hydrologist to address 

water damage to property, a geneticist to examine the inherited properties of a strain of seed com, a penologist to testify to prison conditions in 

a case charging overcrowding, a theologian to testify to the basis in religion of "secular humanism," and an agricultural economist to aid in a 

farm bankruptcy reorganization. 19 

Judicial Receptivity to Appointment of Experts 

In response to a preliminary question in our telephone interviews, judges 

indicated that conflict over scientific or technical evidence is very common.20 Yet, judges appoint experts in very few of the cases in which they 

are presented with conflicting expert testimony. The question arises, 

"Why are experts not appointed more often?" 

The second question asked on the one-page questionnaire ("Are experts appointed under Rule 706 likely to be helpful in certain types of 

cases?") was intended to assess the extent to which judges consider appointment of an expert to be an acceptable alternative in at least some 

types of cases. 

Few judges fail to see any value in appointment of experts by the 

court. Eighty-seven percent of the judges responding to the question indicated that court-appointed experts are likely to be helpful in at least 

19. In eight cases the judge described an appointment but was unable to 

characterize the nature of the expertise that was rendered. Four of these cases involved challenges to prison conditions, in which the appointed expert (in one 

case, a panel of experts) assessed conditions in the prison and reported to the 

court. 

20. We did not attempt to determine with precision the extent to which scientific or technical issues arise in federal district courts. However, as an initial 

part of a question intended to identify reasons for resistance to appointment of 

experts, judges who had appointed only one expert were asked if their most recent trial involved evidence that was scientific or technical in nature. 

Approximately three-fourths of the judges (twenty-nine of thirty-eight judges) 

indicated that such evidence was introduced. The extent and nature of expert 

testimony in federal court is being addressed by a project in progress at the 

Federal Judicial Center. 

Use and Nonuse of Court-Appointed Experts 11 
some circumstances (see infra Table 2).21 This openness to appointment of 

experts extended to judges who had never appointed an expert, 67% of 

whom indicated that such an appointment might be helpful. 

Reasons for Appointing Experts 

Judges who had made a single appointment were asked to describe their 

reasons for making the appointment. They were also asked in another 

portion of the interview what concerns led to their decision to appoint an 

expert. Our interviews revealed two distinct sets of judges who have 

used Rule 706. One group uses the rule primarily to advance the court's 

understanding of the merits of the litigation and to enhance the court's 

ability to reach a reasoned decision on the merits; a smaller group, apparently mostly multiple users, invokes the rule primarily to enhance 

settlement. 

1. To aid decision making. As might be expected, experts are most often 

appointed to assist in understanding technical issues necessary to reach a 

decision.22 The desire for such assistance was attributed by the judges to 

a lack of knowledge in an essential area, a concern over the technical 

nature of an issue or issues, or a concern over the need to properly articulate the rationale for a decision. Many judges mentioned more than one 

of these concerns. 

In explaining the reason for the appointments, judges often admitted 

their need to become better informed on an essential topic of the litigation. Typical comments were "I was aware of the limits of my knowledge 

of [biochemistry]," and "The experts took almost diametrically opposed 

positions in areas in which I knew next to nothing." In some contexts, the 

21. Forty-nine of the 385 judges responding to the question indicated "no/' or 

wrote a comment in the margin to that effect. Another forty-six judges did not 

respond to this second question. All but one of these judges had indicated that 

they had not appointed an expert. Many of these judges indicated that they did 

not have sufficient experience with court-appointed experts to know if such an 

appointment would be helpful. These findings are in accord with the results of 

other surveys on the willingness of judges to consider using court-appointed experts. See, e.g., Judges' Opinions on Procedural Issues: A Survey of State and Federal 

Trial Judges Who Spend At Least Half Their Time on General Civil Cases, 69 B.U. L. 

Rev. 731, 741 (1989) (see Table 3.6). 

22. More than two-thirds of the forty-five judges who had made only one 

appointment reported that they made the appointment to obtain assistance in 

understanding technical issues necessary to reach a decision. We did not ask 

judges who appointed experts on more than one occasion about the reasons for 

their most recent appointment, focusing instead on the general characteristics of 

cases in which they appointed experts. 

12 Court-Appointed Experts 
judge's need for technical expertise was coupled with a first-time exposure to a complex legal specialty area, such as patent law. One judge 

said, "This was my first patent trial and I did not understand the technical issues relating to computers and electronics. The combination of a 

confusing area of law and complex, technical issues led me to seek help." 

Similarly, another judge said, 

1didn't know anything about computer software or the argot 

of the industry ... I was in almost total ignorance and at an 

absolute loss as to what to do to speed up the educational 

process and keep the trial to a reasonable length. 

The need for assistance in decision making often arose when the parties failed to present credible expert testimony, thereby failing to inform 

the trier of fact on essential issues. Judges' doubts regarding the credibility of testimony by the parties' experts were common. Usually an expert 

was appointed when the parties' experts offered directly conflicting testimony on topics that were beyond the comprehension of the court. 

Twenty-seven of the forty-five judges who appointed an expert on only 

one occasion described a situation in which both parties employed testifying experts. These judges often described a situation in which each 

party offered apparently competent expert testimony that was in direct 

opposition on virtually every issue to the other party's expert testimony. 

Such total disagreement in areas unfamiliar to the judge invited a general 

distrust of the experts.23 This concern over the integrity of testimony of 

experts was echoed elsewhere in the survey. When judges were asked in 

a separate question what concerns led them to appoint an expert, in 

eighteen of thirty-six cases judges indicated that there was a failure by 

one or both parties to present credible expert testimony to aid in resolving a disputed issue. Appointment of an independent expert enabled access to testimony that was thought to be both impartial and necessary to 

understand the testimony of the parties' experts. 

23. The extent of the judges' disillusionment with the role played by expert 

witnesses in such a circumstance was revealed by the suspicion with which the 

judges view such testimony. For example, in relating the reasons for appointing 

experts, judges remarked: "I discovered that experts in asbestos were so diverse 

in their opinions that they confused the jury"; "The main issue is whether the 

parties' experts are 'real' experts or simply 'hired guns"'; "1 use an independent 

medical expert only when I smell a rat, based on my knowledge of the lawyers 

and doctors in the community"; U[T]he 'swearing contests' that take place between expert witnesses are a national disgrace, and the 706 procedure may offer 

an alternative to sitting there and listening to it." 

Use and Nonuse of Court-Appointed Experts 13 
For example, one judge recounted his experience in a class action 

dealing with issues of public safety surrounding the construction of a 

school for children with multiple handicaps. The proposed site was alleged to be on a seismic fault line. The case involved complex scientific 

evidence presented in an emotionally charged setting. "Outstanding experts in the field on both sides" clashed "in bitter opposition to each 

other." They "had become advocates." The judge realized that he could 

"apply the burden of proof and rule that plaintiffs had not met their burden," but that resolution did not seem fair because defendants had denied access to the type of testing that might be necessary to prove or disprove plaintiffs' claim. Also, the judge was reluctant to resolve an issue 

of public health and safety, especially the safety of children, without addressing the merits of the claim. He was uncomfortable with the burden 

of proof and decided after a bench trial to reopen the case to hear evidence from a court-appointed expert. The expert recommended specific 

tests, and the court ordered that the tests be conducted. The tests ruled 

out the alleged seismic danger; the judge then refused to enjoin the construction of the school on the site. 

The second typical circumstance involved appointment of an expert 

when at least one of the parties failed to offer expert testimony, resulting 

in what the judge perceived to be an inadequate presentation of issues. 

This circumstance, reported by thirteen of the forty-five judges who had 

"'ppointed an expert on one occasion, typically arose because of a party's 

inability to pay for expert testimony.24 In many of these cases the judge 

had heard expert testimony by one party and could have resolved the 

dispute in favor of that party because of the failure of the opponent to 

present countervailing expert testimony in support of a critical issue. In 

discussing such cases the judges made clear their uneasiness in basing 

their decisions strictly on the adversarial presentations of the parties. 

Such a resolution would have failed to adequately resolve the disputed 

issue and may have complicated a fair and accurate resolution of similar 

issues in the future. These judges were sufficiently concerned about the 

nature of the proffered expert testimony to undertake the considerable 

effort necessary to obtain an independent assessment from an appointed 

expert, thereby obtaining a valid rationale for a decision.25 

24. See discussion of this issue infra note 150 and related text. 

25. Even if there is no consensus on the scientific or technological issues, the 

expert may clarify the parties' arguments and provide information about the extent to which the testimony of the parties falls within the accepted principles, 

theories, and conclusions of persons learned in the field. See generally E. Donald 

Elliott, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific 

Evidence,69 B.u. L. Rev. 487,508 (1989) (suggesting that in cases with "substan14 Court-Appointed Experts 
Though circumstances differed in these cases, each reveals a judge's 

marked dissatisfaction with the parties' experts' presentation of information and the traditional means of resolving such conflicting testimony. In 

each circumstance an expert was appointed by the court when traditional 

adversa rial presentation by parties failed to provide the court with information necessary to make a reasoned determination of disputed issues of fact. 

2. To aid settlement. Some judges suggested that appointment of an expert may bring about settlement,26 although enhancement of settlement 

prospects was rarely an articulated purpose of the appointment. Indeed, 

the judges we interviewed indicated that the prospect of settlement often 

argued against the appointment of an expert. In the words of a judge 

who had never made an appointment, judges might be reluctant to "get 

all dressed up with no place to gO."27 

When the appointment of an expert was made to aid in deciding the 

case, often the appointment appeared to be postponed until it seemed 

certain that the case was unlikely to settle. In twenty of the forty-five 

cases described by the judges who had appointed an expert only once, 

the expert was appointed at some late stage when trial or evidentiary 

proceeding was imminent or had begun.28 One judge indicated he would 

"exhaust other efforts to settle first" and "reserve appointment [of an 

expert] for a case that appears unsettleable by other means." Along the 

same lines, another judge clearly separated the appointment of an expert 

from the settlement process: 

My purpose is not to encourage settlement. It is to get better 

information for making a decision. If I thought a case might 

----------------_.__.. 

tial doubt" regarding the scientific integrity of testimony by a party's expert, the 

court appoint a "peer review expert learned in the relevant fields to testify at trial 

concerning whether the principles, techniques, and conclusions by the experts for 

the parties would be generally accepted as valid by persons learned in the field"). 

26. See Eric D. Green & Charles R. Nesson, Problems, Cases and Materials on 

Evidence, at 700 (1983) (role of court-appointed expert in narrowing the disputed 

issues). 

27. Our sample was somewhat unsuited for an examination of the extent to 

which concerns over settling a case influenced the judge's decision to appoint an 

expert. If a judge threatens such an appointment to settle a case and is successful, 

this instance would not be included in our sample unless the appointment was 

made. Our study was not designed to capture cases in which the threat alone was 

sufficient to bring about a settlement. 

28. In such cases the expert almost always testified or issued a report. For 

further discussion of issues relating to testimonial use of experts in trials or hearings, see Chapter 4. 

Use and Nonuse of Court-Appointed Experts 15 
settle, I would not appoint an expert. I would send it to the 

magistrate [judge] for settlement discussion. If [the magistrate judge's] response indicated that an expert might aid 

settlement, I would consider [appointing one]. 

Even when the appointment was made prior to trial, fewer cases than 

we expected settled: only nine of the twenty-two such cases we examined settled before the expert prepared a report or offered advice. 

We found other evidence to suggest that judt?es might resist appointing an expert if settlement were the expected out~ome. Only seven of the 

forty-five one-time users of Rule 706 alluded to settlement in their responses to our open-ended question about concerns leading to the appointment. In three of those cases, the parties indicated a desire to settle 

and expressed the need for an independent assessment. In those three 

cases, the court seemed to be serving the limited role of selecting a neutral expert who would guide the parties toward settlement. The parties 

paid for the expert and were the primary beneficiaries of the appointment. In the other four cases, the court noted the parties needed an independent assessment, but settlement was not the articulated purpose. In 

two of those cases the court saw the appointment primarily as a way to 

increase understanding of voluminous documents and widely dispersed 

information, and aid either the parties or the court in resolving the dispute. 

Judges who have appointed more than one expert are more likely to 

view settlement as a reason to make an appointment; a majority of those 

judges reported that when appointing an expert they had in mind enhancing the opportunity for settlement.29 These judges sometimes appeared to appoint an expert in an effort to change parties' extreme evaluations of a case. In situations in which the experts for the parties are 

highly qualified, yet give disparate opinions (in the words of one judge 

"fixed on two equally good positions"), an appointment is intended to 

resolve the impasse and permit the parties to move on to discussion of 

other issues. 

29. We asked those who had made multiple appointments, "How do the 

prospects for settlement of the case influence your decision to appoint an expert?" 

Of the nineteen judges who responded to the question, nine indicated that the 

possibility of settlement would favor their decisions to appoint experts and two 

indicated that the prospect of settlement was a secondary consideration supporting appointment. Four of the multiple users said that serious prospects for 

settlement would lead them to not appoint an expert and four more said that the 

prospects of settlement would have no effect on their decision. 

16 Court-Appointed Experts 
Most one-time users also were asked whether they had ever threatened or proposed to appoint an expert under Rule 706 "as a means of 

improving the quality of the expert testimony or resolving the case." The 

majority (twenty-one of the thirty-six judges asked) said that they had 

not threatened to appoint an expert for those purposes.30 Indeed, one 

judge who is active in encouraging settlement by other means has chosen 

not to use court-appointed experts as part of his approach to settlement; 

he raises appointment of an expert only when he intends to make an appointment, reserving the court-appointment process for improving the 

information available to the court. 

On the other hand, about one-third of the one-time users indicated 

that they used the threat of appointment as a settlement device. One 

judge describes an "in terrorem" effect. He says that the threat is effective 

because the authority exists and the judge is known as one who will use 

it; he need not mention it each time. Another judge, who has never 

appointed a Rule 706 expert, reports that he has "a regular procedure for 

addressing problems with experts and focusing attention on whether a 

court-appointed expert is needed." His experience has been that "raising 

the issue has a salutary effect on the lawyers and they either settle the 

case or tone down the position of their expert." Another judge found that 

discussion of a Rule 706 appointment can be helpful when the parties' 

experts appear to agree on almost nothing. Then the judge can "'huff and 

puff' and say he is considering appointment of an independent expert 

since the parties are so far apart." Such a discussion can be helpful in 

"narrowing the issues." Another judge described the process and effect 

this way: 

I have threatened to use a court expert when I discover in the 

final pretrial conference that the parties' experts have taken 

diametrically opposite positions. In those cases, the parties 

have reviewed their position after I've pointed out the "all or 

nothing" character of their position and the risks involved. 

Generally, this changes their evaluation of their cases. 

As with judicial involvement in settlement in general,31 there is no 

consensus on the use of court-appointed experts to aid in settlement. The 

time and expense involved in the process, however, raises the question of 

30. Again, successful use of threats to appoint experts to improve expert testimony may mean that such a judge would not be included among our interviewees. 

31. See generally D. Marie Provine, Settlement Strategies for Federal Judges 

(Federal Judicial Center 1986). 

Use and Nonuse of Court-Appointed Experts 17 
whether an appointment for the purpose of improving judicial decision 

making will be worthwhile if the parties are likely to settle. 

Reasons for Failure to Appoint an Expert 

Almost all judges are willing to consider the appointment of an expert in 

at least some circumstances, so the infrequency of such appointments is 

not related to a strict opposition to the practice. Much of the remainder of 

this report is devoted to a detailed examination of impediments to effective use of court-appointed experts. The following discussion lists the six 

most common reasons mentioned by judges, in order of their frequency, 

for not appointing an expert. Often a combination of these reasons explains the absence of appointments in individual cases. 

1. Infrequency of cases requiring extraordinary assistance. To better understand the reasons for the infrequent appointment of experts, we asked 

eighty-one judges why they thought the authority had been exercised so 

infrequently.32 Fifty judges indicated that they see the appointment of an 

expert as an extraordinary action. The importance of reserving appointment of experts for cases involving special needs was especially apparent in the responses of the judges who had made only a single appointment. Thirty-two of the forty-five judges who had appointed an expert on a single occasion indicated that they had not used the procedure 

more often because the unique circumstances in which they employed 

the expert had not arisen again. They simply had not found another suitable occasion in which to appoint an expert. 

When we asked judges in the mail survey to indicate types of cases in 

which an appointed expert might be helpful, they usually indicated 

types of cases that are both rare and unusually demanding, implying that 

appOinted experts should be reserved for cases with extraordinary needs. 

Table 2 indicates the types of cases, as identified by the judges, in which 

the appointment of an expert would be helpful. More than half of the 

judges mentioned patent cases. Cases involving questions of product 

liability and antitrust violations also were common candidates for such 

32. Sixty-three judges who had appointed an expert on one or more occasions 

were asked why so few other judges had appointed an expert; eighteen judges 

who had not appOinted an expert were simply asked why so few judges appoint 

706 experts. 

18 Court-Appointed Experts 
Table 2 


Are Rule 706 experts helpful in particular types of cases? 


52% of samrle Patent (176 judges :2 Product .& 

Q) Liability ..c:: 

Q) 

.0 Antitrust 


.9 


>. Other Qj 

~ Trademark '" 

'"~ ~ 

.... Securities Q) 

p.. 


>< Tort
 Q) 

Q) 

.... 

Q) Emp'lC!ym.ent ..c:: DiscrIm . ~ 

Q) Voting Rights '" u '" "'"' 0 Criminal Q) 

$: Contract 

0 50 100 150 200 

Number of judges specifying case type 

Note: Of the 537 judges surveyed, there were 385 respondents to this question. 

Forty-six of the 431 who answered the first question did not answer this one (all 

of those judges had answered no to the first question). 

In the "Other" category, the most common responses were "Depends on 

particular case" (twenty-seven judges) and "All cases" (nineteen judges). 

Use and Nonuse of Court-Appointed Experts 19 
assistance.33 It follows that one reason appointments are rare is that the 

kinds of cases in which judges are likely to require such assistance are 

themselves rare. 

Often appointments were made in response to a combination of unusual events, such as a failure by the parties to provide a basis for a reasoned resolution of a technical issue, combined with a perceived need by 

the court to protect poorly represented parties (such as minors or members of a certified class action). One judge, in a case alleging injuries to a 

family arising from toxic contamination of a water supply, appointed an 

expert when the plaintiff's attorney failed to retain an expert witness to 

establish the occurrence of injury to the children. The judge could have 

entered a summary judgment in favor of the defendant, and suggested 

he would have done so but for the presence of children. The failure of the 

plaintiff's attorney to present expert testimony and the presence of children combined to motivate th~ court to appoint an expert. 

A number of judges mentioned the need for an appointed expert 

when the parties' experts are in complete disagreement, one judge remarking, "One needs a complete divergence in the views of the parties' 

experts in a technically complex field. Often experts differ, but not in a 

crazy way." Several of these judges questioned the belief that court-appointed experts were being used too infrequently. While acknowledging 

that such authority is useful, one judge remarked, "I don't know that 

[court-appointed experts have] been used too infrequently. It should remain a rare device that is suited for unusual circumstances." 

2. Respect for the adversarial system. Respect for the adversarial system 

was cited as a reason for the infrequent appointment of experts by thirtynine of the eighty-one judges, including thirteen of the eighteen judges 

who had not appointed an expert.34 Many of those who had appointed 

experts professed commitment to the adversarial process and the ability 

of juries to assess difficult evidence, and indicated they would appoint 

an expert only where the adversarial process had failed. The extent of the 

esteem for the adversarial system among the judges responding was re33. In the twelve-month period from July 1, 1989, to June 30, 1990, a total of 

9,263 civil cases were terminated during or after trial. Of these, there were ninetysix patent cases and one antitrust case. Product liability cases were not listed separately in the reference source. Administrative Office of the u.s. Courts, Annual 

Report of the Director, 1990, at 153-54, Table C-4. 

34. Judg-es were permitted to offer more than one reason, and many of the 

judges who cited the unique circumstances in which such an appointment would 

be appropriate also stressed the importance of the judge not intruding on the adversarial system where it appears to be functioning. 

20 Court-Appointed Experts 
vealed by several of the comments of judges who had appointed an expert on one or more occasions: 

I believe in the adversary system. I was a litigator for thirty years. I 

don't feel comfortable taking over the case (like a small claims court, 

without lawyers). I don't know why I would be better equipped 

than the lawyers to find a top-flight person. 

[T]he lawyers are pretty good about shooting holes in each others' 

experts. It's generally a credibility question and the jury can sort it 

out. 

We're conditioned to respect the adversary process. If a lawyer fails 

to p.xplain the basis for a case, that's his problem. 

In general, it conflicts with my sense of the judicial role, which is to 

trust the adversaries to present information and arguments. I do not 

believe the judge should normally be an inquisitor. 

A related reason for infrequent appointment of experts is deference by 

the judge to objections by the parties. Several judges alluded to such resistance, one stating, "The parties resist, saying that they have their own 

experts." Similarly, another judge said that generally "the plaintiffs or 

their attorneys do not want such an expert because it will reduce the 

value of their case. I don't appoint experts without consent of the parties." Judges who favored other alternatives over the use of courtappointed experts cited deference to the parties as an important consideration.35 

In addition to citing reasons of judicial philosophy for the reluctance 

to appoint an expert, a number of judges also mentioned practical problems that serve to impede appointments. Much of the remainder of the 

report is devoted to an analysis of these practical difficulties, but they 

also are listed here as an indication of the hurdles that must be overcome 

if an appointment is to be made. 

3. Difficulty identifying an expert suitable for appointment. Judicial reluctance to appoint an expert also may reflect the difficulty, if not the impossibility, of selecting "a truly neutral person.,,36 The difficulty in 

identifying a suitable neutral expert to serve the court was mentioned by 

fourteen judges. Some judges spoke of the difficulty in recruiting unbi35. See also Manual for Complex Litigation, Second § 21.5 (1985) ("Counsel 

may view such referrals as infringing on their prerogatives, as encroaching on the 

right to a jury trial, or as imposing additional time and expense."). 

36. Id. See also Weinstein's Evidence, supra note 2, at '11'11 706-12 to -13. Judge 

Weinstein and Professor Berger elaborate on the reasons stated summarily by the 

editors of the Manual for Complex Litigation. 

Use and Nonuse of Court-Appointed Experts 21 
ased experts with the knowledge demanded in litigation. Some didn't 

know where to tum to initiate the process. And expressed repeatedly in 

the interviews was the distrust of expert testimony in generaL Several 

judges doubted that such testimony would be truly neutral, even if the 

expert was invited to testify by the court. A few of the comments will reveal the depth of this concern: 

It is hard to find an impartial expert. When both parties have experts testifying, the judge may feel that another expert opinion will 

only add to the confusion. 

In circumstances that are simply a matter of professional opinion, 

adding another opinion is unlikely to be helpful. 

To appoint an expert is to decide the case. Few experts are truly 

neutral and the expert will decide the case according to personal 

values. In most fields, there is no neutraL 

It is difficult to find a neutral expert, and the judge is in no better 

position to judge the neutrality of the expert than the parties. 

4. Securing compensation for an expert. Another practical problem, 

raised by fourteen judges, concerns the means of compensating an expert. Since the parties are usually assessed a fee for the services of a 

court-appointed expert, the judge must often order payment by the parties, and perhaps supervise the billing practiCes of the appointed expert.37 Reliance on the parties for payment of fees was cited by several 

judges as the principal reason for restricting appointment of experts to 

cases in which the parties consent to an appointment. As one judge who 

had never appointed an expert stated, the lawyers find the process "hard 

to justify to their clients when the client is paying for expert testimony already," particularly when the court-appointed expert may "hurt the 

client's case, making the client even angrier." 

5. Lack of early recognition that appointment is needed. Thirteen judges indicated that effective appointment of an expert requires the court's 

awareness of the need for such assistance early in the litigation. Since the 

parties rarely suggest that the court appoint an expert, judges sometimes 

realize that they need assistance on the eve of trial when there is not 

sufficient time to identify and appoint an expert. Several judges indicated 

that they had learned of the need for such assistance when it was too 

late. Other judges pointed to the crucial role played by the judge's pretrial procedures in informing the judge of the existence of a dispute 

37. Issues regarding payment of expenses incurred by the expert are discussed 

in Chapter 5. 

22 Court-Appointed Experts 
among the parties' experts and permitting sufficient time to consider an 

appointment.38 

6. Lack of awareness of the procedure. Eleven judges attributed the low 

incidence of court-appointed experts to a lack of awareness of the opportunity and means to make such an appointment. Since the rule is rarely 

invoked, there is little information concerning this process. This lack of 

familiarity on the part of some judges has led to some distrust: one judge 

remarked, liMy guess is that it could be a pain in the ass." 

38. The need for an early awareness of a conflict among the experts was indicated by the following comments: "Generally, the one-sided views of experts 

are not helpful, but the problem of experts is usually not called to the judge's attention in time .... I've seen inadequate experts, but I usually find out too late to 

prepare for a court appointment. A judge needs to find out early"; "Busy judges, 

especially those who delegate pretrial management to [magistrate judges], don't 

see the problem until it's too late"; "Some judges are reluctant to intervene in the 

litigation, or are unable to intervene either because they do not have the time or 

have a case management system that permits an ability to intervene in a timely 

manner." 

Use and Nonuse of Court-Appointed Experts 23 

Chapter 3 

Identification and Appointment 

of Experts 

This chapter addresses the procedures used in the early stages of the appointment process: the timing of the appointment, the manner in which 

the appointment is initiated, and the means of selecting the expert. 

Timing of the Appointment 

One of the impediments to broader use of court-appointed experts mentioned earlier is the difficulty in identifying the need for an expert in time 

to make the appointment without delaying the triaJ.39 Procedures 

specified in Rule 706 imply that the appointment process "will ordinarily 

be invoked considerably before trial" to allow time for hearings on the 

appointment, consent of the expert, notification of duties, research by the 

expert, and communication of the expert's findings to the parties in 

sufficient time for the parties to conduct depositions of the expert and 

prepare for trial.40 For example, one authority has suggested that 

identification of the need for a neutral expert should begin at a pretrial 

conference held pursuant to Federal Rule of Civil Procedure 16.41 

However, specific procedures for identifying such a need are left to the 

trial judge.42 

Judges often indicated that they became aware that the traditional adversary process might be inadequate as they learned of conflicts in the 

evidence; eighteen of the forty-five one-time users identified direct 

conflicts in the evidence as one of the concerns that led to the appointment. In nine of those situations judges identified clear conflicts in the 

evidence at preliminary hearings, while reviewing affidavits, or during 

some other pretrial exercise. In the other nine instances judges antici39. See supra note 38 and related text. 

40. Weinstein's Evidence, supra note 2, at'll 706-14; see also United States v. 

Weathers, 618 F.2d 663, 664 n.1 (lOth Cir.), cert. denied, 446 U.S. 956 (1980). The 

Manual for Complex Litigation, Second § 21.5 (1985) recommends consideration 

of the use of a court-appointed expert, special master, or magistrate judge "[w]ell 

in advance of the final pretrial conference." 

41. Weinstein's Evidence, supra note 2, at '11'11706-14 to -15. 

42. For example, a court may want to time the neutral expert's testimony and 

final report to allow that expert to hear and comment on the testimony of the 

parties' experts. See, e.g., Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 

1311-12 (S.D.N.Y. 1981). 

25 
pated that irresolvable conflicts would develop by gauging the emotional 

intensity of the parties' arguments, by using personal knowledge and 

skepticism about the quality of a proposed expert, or by reviewing summaries or previews of the evidence in pretrial conferences and otherwise. 

Timing of the appointment was discussed regarding fifty-two cases.43 

A majority of the experts were appointed at an early point in the 

litigation, but a sizable minority were appointed on the eve of tria1. 44 A 

few judges even appointed experts during or after bench trials. Often, 

judges who acted immediately before, during, or after trial indicated that 

an earlier appointment would have been helpful. Thirty-one of the 

judges reported that they appointed the expert early in the pretrial 

process, usually at the close of discovery, leaving time to recruit an expert and permit the expert to prepare a report. 

Judges who had appointed more than one expert were especially 

likely to make an appointment early in the pretrial process: eighteen of 

the twenty-four judges interviewed who had appointed an expert on 

more than one occasion indicated that they made appointments early, 

usually soon after discovery. Several of these judges indicated that they 

employ a routine procedure that helps identify the need for an expert at 

an early stage in the litigation. Recall that judges who have appointed 

experts more than once are more likely to use the process to stimulate 

43. Sixty-six judges were asked "At what point in the litigation did you appoint the 706 expert? Would it have been helpful to have appointed the 706 expert earlier in the litigation?" Because we did not anticipate the variety of non trial 

or unusual trial circumstances in which an expert would be employed, instances 

described by fourteen of the judges did not lend themselves to fairly 

characterizing the timing of the appointment as "early" or "late." For example, 

two of the appointments were intended to determine the fitness of criminal defendants to stand trial and one appointment was made to address an issue that 

arose during sentencing a criminal defendant. In two cases the appointment wAs 

made to assist the judge in assessing a settlement agreement that would be supervised by the court. Other appointments were made to assist with questions 

involving class certification and a proposed reorganization in a bankruptcy case. 

These cases were excluded from the analysiS because the need for an expert could 

not have been anticipated. 

44. In discussing the timing of the appointment, the term trial is used in a 

broad sense to indicate the anticipated evidentiary hearing before the court in 

which the opinion of the appointed expert would be solicited. Usually this will be 

a formal trial before a judge or jury. Sometimes, however, the court invited the 

assistance of an expert to aid in resolving an issue to be addressed in a pretrial 

hearing. In this circumstance the timing of the appointment was examined with 

reference to the hearing rather than to the trial itself. For convenience, this pretrial hearing is referred to as a trial. 

26 Court-Appointed Experts 
settlement, a purpose that one would expect to be correlated with early 

appointment. 

Judges who appointed an expert on the eve of trial often reported 

considerable flexibility in scheduling the expert's participation. Twentyone of the judges indicated that they appointed the expert either immediately before or during a bench trial; only one judge made such a late 

appointment in a jury tria1.45 On seven of the twenty-one occasions the 

appointment took place during the course of a bifurcated trial after liability was established, with expert assistance typically invited to inform 

deliberations regarding the amount of damages. Since the need for expert assistance was contingent on the ruling on liability, these appointments were made at the earliest practical point. 

The remaining fourteen instances in which the expert was appointed 

immediately before or during the course of an ongoing trial offer examples of judges attempting to cope with unexpected difficulties. Often the 

expert was appointed when the parties were ineffective in addressing 

troublesome but crucial technical issues, either because the parties presented no testimony by expert witnesses or because the expert witnesses 

lacked credibility with the court. The judges chose to seek additional assistance rather than resolve the disputed issues on the basis of a record 

that they considered incomplete or inaccurate. In some of the fourteen 

cases, the technical issues involved questions of public safety, the protection of minors, or both. In two noteworthy cases, the court reopened the 

evidentiary proceedings after the close of the bench trial and initiated the 

appointment of an expert witness as a means of addressing technical issues that had proven intractable as the judge deliberated. In both cases 

the consequences of the decision extended far beyond the immediate 

parties to the litigation. 

Asked if it would have been helpful to appoint the expert at an earlier 

point in the litigation, those who made an appointment shortly after discovery generally expressed satisfaction with the timing of the appointment. By contrast, most of those fourteen judges who appointed the expert immediately before or during the trial indicated that appointment 

earlier in the process would have been helpful. Often they noted the 

45. In the Single instance in which a late appointment was made in a case tried 

before a jury, a handwriting analyst was appointed to assess the contention of a 

criminal defendant that she had not signed checks that implicated her in a crime. 

Neither the prosecutor nor the defendant had provided an expert witness to 

address the accuracy of the attribution of the signature to the defendant. The 

expert appointed by the court was well known and accessible to the court, and 

the analysiS was straightforward, suggesting that this was an unusually easy instance in which to invoke such assistance. 

Identification and Appointment of Experts 27 
need to reschedule the proceeding to permit time to appoint and employ 

the expert. Another judge mentioned that an earlier appointment would 

have been helpful in recruiting more skilled experts, remarking, "Only 

one of the potential experts was available. With more time it may have 

been possible to choose among several experts." 

The lateness of some appointments appears to have been the result of 

a lack of familiarity with the substance of the litigation. For example, one 

judge indicated that he was unfamiliar with patent cases and was not 

experienced enough to anticipate the problems that would arise. Several 

of the judges who had made more than one appointment indicated that 

their familiarity with the substantive nature of the litigation permitted 

them to anticipate the need for assistance and initiate the appointment 

process at an early stage in the proceedings. Erroneous expectations of a 

settlement also mislead some judges into postponing the appointment of 

an expert until late in the proceedings. When asked if an earlier appointment would have been helpful, one judge remarked, NI don't think 

so. I don't think I could have been persuaded that it was necessary any 

earlier, that the case would not settle." 

Finally, a number of judges who appointed experts just prior to or 

during trial pointed out the difficulty of anticipating some of the circumstances that resulted in the need for an expert witness. As noted above, a 

number of these instances resulted from a failure by the parties to present credible experts at the trial. When no expert testimony was to be 

presented, this fact often was noticed only at the final pretrial conference 

when the lists of testifying witnesses were submitted. In other instances 

in which the appOintment stemmed from the lack of credibility of one or 

more of the witnesses, the judges pointed out that credibility could not 

have been judged before triaL 

It is worth emphasizing that all but one of these instances in which an 

appointment was made immediately before or during trial involved a 

judge rather than a jury serving as the finder of fact. One judge remarked 

that a bench trial permits such flexibility because the judge can schedule 

the proceedings without having to accommodate the need for a continuous period of service by jurors. He noted that a late appointment did not 

make much difference in a bench trial, "but a jury trial would be different; I would have to move earlier." In fact, we wonder if one of the reasons for the paucity of court-appointed experts in jury trials is the necessity to identify the need for such assistance early in the proceeding. 

While a jury trial certainly presents other issues that make appointing an 

expert more difficult,46 the prospect of interrupting a jury trial to place 

46. See infra note 107 and related text. 

28 Court-Appointed Experts 
into motion an appointment process that may take weeks or even 

months must inhibit the use of court-appointed experts. 

In summary, it appears that experts usually were appointed long before their testimony would be needed, and many judges who made late 

appointments thought an earlier appointment would have been helpfuL 

When an appointment was made on the eve of trial it typically was made 

in a situation that was difficult to anticipate and in which the evidentiary 

hearing could be interrupted or postponed. We are left asking what happens in similar situations in which the evidentiary hearing cannot easily 

be delayed, such as in cases in which a jury has been impaneled to hear 

the evidence. These may be instances in which the failure to anticipate 

the need for assistance has eliminated this procedure as a practical alternative, leaving the court and the jury to sort out the conflicting evidence 

without assistance. 

Initiation of the Appointment of the Expert 

Our interviews revealed that the initial suggestion to appoint an expert 

almost always comes from the judge, not the parties.47 When asked who 

had initiated the appointment, almost all of the judges who responded 

(fifty-four of sixty-one judges) indicated that they had. In only seven 

instances did the initial suggestion come from the parties-twice from 

the plaintiff, twice from the defendant, and three times from both parties. 

In one instance the plaintiff's suggestion for appointment of a panel of 

experts48 appeared to be part of a broader litigation strategy, since the 

plaintiff had recommended such appointments in related litigation in 

other districts. 

A number of the judges who had been trial attorneys before becoming 

judges noted that they would not have suggested a court-appointed expert when they were attorneys. Having appointed experts as judges, 

however, they now approve of the procedure and would consider recommending its use to litigators. One judge remarked, "Lawyers are 

afraid of [the authority of the court to appoint an expertl. If I were in pri47. The judges were asked, "Did you suggest using a 706 expert or was this 

suggested by one of the parties? Did either or both parties oppose appoinhnent of 

the 706 expert?" 

48. Panels of experts also may be appointed by the court. Rule 706 uses the 

plural term expert witnesses to indicate that more than one expert may be appointed in a case. See Gates v. United States, 707 F.2d 1141, 1144 (lOth Cir. 1983); 

Fund for Animals, Inc. v. Florida Game and Fresh Water Fish Comm'n, 550 F. 

Supp. 1206, 1208 (S.D. Fla. 1982); Lightfoot v. Walker, 486 F. Supp. 504, 506 (S.D. 

m. 1980); In re Repetitive Stress Injury Cases Pending in the Eastern District of 

New York, 142 ERD. 584 (E.D.N.Y. 1992). 

Identification and Appointment of Experts 29 
vate practice I think I would use it. It is a powerful tool to come to a 

judge and say, 'Your Honor, I think any neutral expert we find will agree 

with our side.'" Nevertheless, the infrequency with which parties initiate 

an expert appointment suggests that it is generally left to the judge. 

While the parties rarely suggested appointment of an expert, they also 

rarely objected to the judge's suggestion that an expert be appointed. In 

three-fourths of the cases (fifty-two of sixty-eight instances) the judge reported that neither party opposed the appointment. Of course, these 

figures may understate the actual degree of opposition and our strategy 

for identifying cases would have overlooked cases in which the judge deferred to parties opposed to the appointment.49 Some of the comments 

from the judges indicated that while there may have been no formal opposition to the appointment some parties expressed reservations. In only 

a few instances did there appear to be any enthusiasm by the parties for 

the process.50 

In sixteen instances there was formal opposition to the appointment of 

the expert, including several instances in which a party opposed the appointment in the form of a petition of mandamus seeking appellate review of the authority of the judge to make the appointment. In each instance the authority to make the appointment was upheld. Several concerns were expressed in opposition to the appointment, including the 

allocation of the expert's expenses among the parties, the scope of the issues addressed by the expert, and the expert's impartiality. These reports 

may underestimate the instances of parties opposing an appointment because judges may have been unaware or untold of such reservations. 

49. Interviews with judges who considered and rejected the idea of appointing 

an expert revealed several instances in which judges acquiesced to party oppOSition of a proposed appointment. See note 161 and related text. See also Tahirih 

v. Lee, Court-Appointed Experts and Judicial Reluctance: A Proposal to Amend Rule 

706 of the Federal Rules of Evidence, 6 Yale L. & Pol'y Rev. 480, 501 (1988) 

(suggesting that Rule 706 be amended to make clear that consent of the parties is 

not required to appoint an expert). 

50. In a few instances the parties were eager to resolve an evidentiary dispute 

that was impeding settlement discussions and welcomed the suggestion of a 

court-appointed expert as a means of resolving this impasse. Judges who used 

such experts as technical advisors with the consent of the parties also reported 

that the parties welcomed the appointment. 

30 Court-Appointed Experts 
Selection of the Appointed Expert 

Identification and selection of a neutral expert by the court is a critical 

step in ensuring the fairness of the proceeding.51 Many judges anticipate 

difficulty in finding a neutral expert who will consent to an appOintment.52 Judges were asked, "How was the expert selected? Did the 

parties nominate candidates? Did you identify candidates other than 

those nominated by the parties? Was it difficult to identify a neutral 706 

expert?" 

Only six of sixty-six judges reported difficulty finding a neutral expert 

willing to serve. Those six judges cited either difficulty in finding a 

skilled person who could be considered neutral (some had ties with the 

parties while others had previously taken positions on the technical issues that were the object of the dispute), or difficulty in finding a neutral 

expert who would consent to serve in the position. 

Some judges may have encountered difficulty in finding a neutral expert and abandoned their efforts to appoint such a person, thereby eluding our investigation. Several judges who had not appointed experts 

mentioned that their attempts to make an appointment had been 

thwarted by an inability to find a suitable person to serve as an expert. 

For example, in one case involving a dispute about the value and authenticity of a product, the judge simply found no interest among potential 

experts. In another case the judge found that all of the experts in the field 

had ties to either government or industry, the parties to the dispute. 

Perhaps one reason judges who made such appointments found little 

difficulty in identifying experts is that they often appointed experts with 

whom they were familiar. We found that it is far more common for 

judges to appoint experts that they have identified and recruited, often 

based on previous personal or professional relationships, than for judges 

to appoint experts nominated by the parties. 53 

51. By "neutral" expert we mean an expert who can respond to the technical or 

scientific issue in a manner consistent with generally accepted knowledge in an 

area, without regard to the interests advanced by either party. This would rule 

out experts with significant ideological, financial, or professional interests in debatable normative issues related to the issue in dispute. 

52. Rule 706(a) specifies that the court shall not appoint an expert who does 

not consent to serve. 

53. Judges are afforded great discretion under Rule 706 in designating a 

procedure for appointing such an expert. Gates v. United States, 707 F.2d 1141, 

1144 (10th Cir. 1983). Rule 706(a) provides that "[t)he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of 

its own selection." 

Identification and Appointment of Experts 31 
In forty-one of the sixty-six appointments, the judge appointed an expert without suggestions by the parties. In twenty-nine of these cases, the 

judge used preexisting personal or professional contacts to identify an 

expert. The informality of the procedure used by many judges may be 

problematic. A number of judges relied on recommendations by friends; 

on a few occasions, judges asked friends to serve as experts.54 Former 

magistrate judges and former law clerks also were appointed as experts. 

One judge relied on discussions with his wife, who was an experienced 

professional in the area of interest, for suggestions for likely candidates 

and appropriate rates of compensation. 

In many of these cases (we didn't ask specifically, but comments by 

the judges suggested this to be the common practice) the parties had the 

opportunity to object to the appointment, and in some instances objections were entered and other experts were selected. However, the extent 

to which judges relied on their informal networks of friends and acquaintances raises concerns about the extent to which such networks can 

be relied on to provide skilled and neutral experts to inform-the deliberations of the trier of fact. While such persons may be "disinterested" with 

regard to the issues of the specific case, there is little assurance that such 

acquaintances bring an unbiased, or even a well-informed, perspective to 

the disputed technical issues. Personal associations formed while practicing law may reflect a narrow spectrum of professional opinion that was 

suited to the interests of the judges' former clients and colleagues. Even if 

54. The comments of one judge, in a case in which the parties submitted a list 

of suitable candidates, indicated the range of options that are considered when 

the judge must identify a suitable candidate: "I had a plan for identifying other 

candidates if the parties had not submitted a name. I either would have gone to 

one of the national [accounting] firms and plucked out their best or I would have 

picked among prior witnesses in my court. I also thought of my own accountant, 

decided that it would not be nght to appoint him, and concluded that I would 

consult him for recommendations." Informal means of recruiting experts through 

the recommendations of friends and colleagues appears to be the norm. Such 

practices have been observed in criminal cases involving expert testimony 

(Michael J. Saks & Richard Van Duizend, The Use of Scientific Evidence in 

Litigation 16, 28 (1983», in workers compensation claims (Peter S. Barth, Workers 

Compensation Research Institute, Resolving Occupational Disease Claims: The 

Use of Medical Panels (1985», and under the German system which relies on 

experts appointed by the court (John H. Langbein, The German Advantage in Civil 

Procedure, 52 U. Chi. L. Rev. 823,838-39 (1985». 

32 Court-Appointed Experts 
such an appointment results in the selection of a suitable expert, the parties may perceive such an expert as biased. 55 

Judges did not always rely on friends and associates to suggest experts; in nine instances in which an appointment was made without suggestions by the parties, judges contacted nearby institutions for assistance in identifying suitable experts to serve the court.56 These were 

almost all instances in which medical expertise was needed and the 

judges contacted nearby medical schools or associations for suggestions 

of candidates.57 Such a procedure, while more burdensome and not 

foolproof,58 is likely to be more effective than using informal contacts to 

identify skilled, neutral experts. 

In eighteen instances the expert was selected from a list of experts 

provided by one or more of the parties.59 Published cases commonly 

suggest that a court direct the parties to seek agreement on an appoint55. We should note that while our interview with judges raised the possible 

dangers of such appointments, we 'found no indication that such harms have resulted. 

56. The selection procedure suggested in the Manual for Complex Litigation is 

for the court to "call on professional organizations and academic groups to 

provide a list of qualified, willing and available persons." Manual for Complex 

Litigation, Second § 21.51 (1985); see also Charles T. McCormick, Evidence 71 

(John W. Strong ed.) (4th ed. 1992) (recommends "establishing panels of impartial 

experts designated by groups in the appropriate fields, from which panel courtappointed experts would be selected"). 

57. E.g., "I wrote to the American Medical Association, the Board of Pulmonology, and the Board of Industrial Medicine. I asked them if they could identify 

experts in the detection of asbestos disease who were not aligned with either 

party in the litigation. They were all very helpful and also are upset about the 

misuse of experts in the courts. I compiled a list of about a dozen experts"; "Both 

sides agreed to my suggestion that I call Mt. Sinai Hospital and ask for their top 

person in the area of hip surgery." 

58. Professional associations and academic groups also may have skewed 

approaches to a specific issue, perhaps giving subconscious, or even conscious, 

priority to the impact of a rule or ruling on their professional autonomy. Medical 

malpractice cases, for example, may test the ability of medical schools or professional associations to assist in identifying neutral experts. 

59. The few reported cases dealing with selection of experts tend to emphasize 

nomination by the parties. See, e.g., Gates v. United States, 707 F.2d 1141, 1144 

(S.D. Fla. 1982); Fund for Animals, Inc. v. Florida Game and Fresh Water Fish 

Comm'n, 550 F. Supp 1206, 1208 (S.D. Fla. 1982); Leesona Corp. v. Varta Batteries, 

Inc., 522 F. Supp. 1304, 1311 (S.D.N.Y. 1981); Lightfoot v. Walker, 486 F. Supp. 

504,506 (S.D. III. 1980); United States v. Ridling, 350 F. Supp. 90, 99 (E.D. Mich. 

1972). 

Identification and Appointment of Experts 33 
34 

ment and exercise its discretion only if the parties fail to agree.60 One 

district court has adopted this approach by local rule, stating that "[ilf 

the parties agree in the selection of an expert or experts, only those 

agreed upon shall be appointed. Otherwise, the judge will make his own 

selection."61 Sometimes the parties agreed on an expert with little or no 

involvement from the judge. Normally each party submitted a slate of 

experts that would be acceptable to them. Occasionally one or more 

names would appear on each list, making selection easy. Often the parties identified one or more suitable experts with little or no involvement 

by the judge. When the parties could not agree, the judge often chose the 

expert from the slates after listening to objections from each of the parties. 

Soliciting nominations from the parties did not always relieve the 

judge of the responsibility of seeking other candidates. In five instances 

the parties advanced slates of candidates that were not acceptable to the 

judge. These judges were then left with the task of identifying a suitable 

expert; they contacted friends or institutions for suggestions for candidates. 

In summary, the identification of a need for, and selection of, a courtappointed expert appears to be a process in which the parties infrequently play an active role. The judge typically identifies the need for assistance and raises the pOSSibility of such an appointment, sometimes 

very late in the pretrial process. The judge is usually responsible for 

identifying suitable candidates and often relies on informal recommendations from friends and associates. Such unsystematic approaches to 

identifying needs and recruiting experts raise doubts about the extent to 

which the procedure provides the timely and neutral assistance warranted by the critical nature of the expert's task 

60. United States v. State of Mich., 680 F. Supp. 928,957 (W.D. Mich. 1987); 

Unique Concepts, Inc. v. Brown, 659 F. Supp. 1008,1011 (S.D.N.Y. 1987); Hatuey 

Prod., Inc. v. United States Dep't of Agric., 509 F. Supp. 21, 23 (D.N.]. 1980). See 

also Pamela L. Johnston, Court-Appointed Scientific Expert Witnesses: Unfettering 

Expertise, 2 High Tech. L.J. 249, 268 (Fall 1987) (suggesting that Rule 706 be 

amended to require parties to submit a list of proposed experts suitable for appOintment by the court for each area of disputed scientific testimony). 

61. U.s. District Court for the District of Kansas, Rule of Practice 211 (1988). 

See also Local Rule 5, § III of the Western District of Pennsylvania, permitting referral to an impartial medical expert, selected from a panel of experts deSignated 

by a local medical association, after consultation with the local bar association. 

We understand that this program is presently inactive. 

Court-Appointed Experts 
Chapter 4 

Communication with the Appointed 

Expert 

Instruction of the Appointed Expert 

Rule 706(a) specifies two options for instructing the expert in his or her 

duties, both of which ensure that the parties will be aware of the assignment. The court may communicate with the expert either in writing 

(filing a copy with the clerk) or at a conference in which the parties have 

an opportunity to participate.62 In practice, judges instructed experts by 

conference call (involving the judge, the expert, and the parties), informal 

conferences in chambers, formal hearings in open court, and letters and 

written orders, sometimes with accompanying documents and exhibits. 

In only two instances did judges instruct experts outside the presence of 

the parties.63 

Judges' instructions were used to meet multiple needs, including 

(I) establishing a record of the terms and conditions of the appointment, 

(2) defining the legal and technical issues in the case and identifying the 

technical issues the expert was to address, (3) clarifying the role of the 

expert in relation to the role of the judge, and (4) establishing procedures 

for assembling information, communicating with the parties, and report­

---~.....----.......­

62. Fed. R. Evid. 706(a). The rule distinguishes communications regarding the 

appointment from informing the expert and the parties about the expert's duties. 

The appointment process may necessarily involve ex parte communication 

between the judge and a proposed expert. The rule envisions that a court may 

make "its own selection" and that the expert witness will then consent to the appointment. Id. The opportunity for an informal exchange of information about the 

qualifications of the expert and the needs of the court seems appropriate, if not 

essentiaVto aid the court and the expert in their respective decisions. 

63. Direct instructions from the judge outside the presence of the parties occurred in an emergency situation (appointment of a doctor to review medical 

records on the day of triaD and in a nonadversarial situation in which the expert 

functioned like a special master in preparing a report to assist the judge in formulating the distribution of a settlement fund. For discussion of the application of 

rules regarding ex parte communications by the judge or the parties with the 

court-appointed experts, see infra notes 79-96 and related text. 

35 
36 

ing findings and opinions. The following discussion summarizes how 

judges met those needs in the cases we encountered.64 

Regarding terms of payment, judges included the rate of payment,6S 

any ceiling on the total amount of work and payment, the allocation of 

payment among the parties, the timing of installment payments, the 

amount of an initial payment, the court's role, if any, in reviewing the 

bills and serving as a conduit for payments, and reallocation of payments 

upon taxation of costs. 

Judges also used the order of appointment to define the role of the 

court-appointed expert in relation to the judicial role, distinguishing between the expert's duty to provide technical expertise and the judge's 

duty to decide the case. One judge said, 

I instructed [the expert] that his role was to help me and that 

he was not to decide the case. His main role was to interpret 

the language to me, give me background on computer technology, tell me how the various systems work. 

Similarly, another judge said, "[l] emphaSized that I did not want him 

to give his opinion on the substance of the dispute, but to explain and 

guide me through the testimony." Another defined the expert's role as 

that of "interpreter."66 

On the other hand, one judge seemed to want an opinion from the 

appointed expert on the ultimate issue.67 He issued an order "instructing 

... [the expert] to answer the question in the case, whether the device in 

issue was an infringing device." Occasionally, as in this example, words 

may differ in their technical and legal meanings. When using legal terms64. For an example of an order appointing an expert, see In re Swine Flu 

Immunization Products Liability Litig., 495 F. Supp. 1185 (1980) (comprehensive 

order appointing panel of experts to review swine flu cases, detailing the areas of 

inquiry, the duties of the panel, the content and timing of the reports, the deposition process, exchange of information by counsel, and the charges and method of 

claiming compensation). 

65. Issues regarding compensation of experts are discussed in Chapter 5. 

66. For an example of a broad grant of authority to a court-appointed experts 

that included the opportunity to suggest a modification of legal doctrine 

governing software copyright, see Computer Assoc. Int'l v. Altai, Inc., 775 F. 

Supp. 544 (E.D.N.Y. 1991), af!'d in relevant part, 982 F.2d 693, 1992 U.S. App. 

LEXIS 33369 (2d Cir. 1992). 

67. Fed. R. Evid. 704 removes the traditional objection to testimony on the 

"ultimate issue to be decided by the trier of fact." In discussing the inherent 

power of a court to obtain assistance from a technical advisor, the First Circuit 

stressed the point that such advisors "may not be allowed to usurp the judicial 

function." Reilly v. United States, 863 F.2d 149,157 (lst Cir. 1988). 

Court-Appointed Experts 
of-art, a judge may have a special need to define issues and roles 

clearly.68 

The form of the expert's report should also be defined. By detailing 

the formalities of reporting, the court may prevent unnecessary confusion regarding ex parte communication between the expert and the 

court.69 

In addition to defining the roles of the judge and expert, the court also 

must define the issues for the expert to consider. This may be as straightforward as directing a panel of physicians to determine a plaintiff's injuries, prognosis, and the treatment required?O In other cases, defining 

the technical issues for the expert may require an explanation of legal issues as well. For example, in a case dealing with conditions of 

confinement at a correctional facility, the court used the appointment of 

an expert to articulate the applicable legal standards.71 

Defining the issues to be considered by the expert seems to serve 

multiple purposes. For the expert, a written definition will serve as an essential guide to the generally unfamiliar world of litigation and the role 

of the appointed expert. For the parties and counset the use of courtappointed experts is so rare that a clear definition of the issues and the 

process should enhance understanding and allay concerns. For the court 

itself, the process of defining the issues may help clarify the roles of the 

court and expert. In one of the few cases in which a party contested an 

appointment, the court asked the parties to propose instructions to the 

68. For example, even in a technical area such as patent law, the apparent 

identity of technical and legal terms may be deceiving. In the case of Pennwalt 

Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir. 1987), plaintiff urged that 

the "doctrine of equivalents" compelled a finding of infringement because the 

court-appointed expert had testified that "the internal operations ... are functionally equivalent because they perform some of the same operations." Id. at 937. 

The court emphasized that the expert was "a technical, not a legal expert" and 

that, as such, he "was not expected to, and did not analyze infringement under a 

legal standard." Id. at 936. The court went on to find that the testimony on the 

facts relating to equivalency was not inconsistent with the court's conclusion that 

there was no legal equivalency. 

69. See discussion at notes 85-86 and related text. 

70. See, e.g., In re Swine Flu, 495 F. Supp. at 1186 (1980); see also In re Asbestos 

Litigation (S.D. Ohio filed April 29, 1987) ("render an objective medical diagnosis 

of the presence or absence of asbestosis or other asbestos-related diseases"). 

71. Stickney v. List, 519 F. Supp. 617 (D. Nev. 1981); see also United States v. 

State of Mich., 680 F. Supp. 928, 983-84, 986-88 (W.D. Mich. 1988). 

Communication with the Appointed Expert 37 
expert. After reviewing them, the court formulated its own instructions, 

addressing issues raised by the parties' proposals.72 

Instructions to experts have been, at times, open-ended. For example, 

in a complex antitrust case the court established a process for the expert 

to "formulate the technical issue(s) the expert thinks are appropriate and 

form opinions thereon.,,73 If a judge wishes to have an expert examine 

the methodology of the parties' experts, this should be communicated in 

the order of appointment?4 

Finally, judges frequently use the order of appointment as a way to 

define the process of assembling information for the expert.75 As noted 

above, one court channeled all of the information from the parties to the 

expert through the court. This process permitted easy assembly of a 

record of the basis for the expert's opinions. In other cases, the court established a way for the parties to convey information to the expert without the court's participation. 

In several of the cases, the courts closely supervised the transfer of information to the expert by specifying the transcripts and portions of exhibits to be delivered to the expert, ruling on proposals from the parties, 

and providing for court review of additional requests from the expert. 

72. Students of the Cal. Sch. for the Blind v. Riles, No. Civ.s.80-473-MLS (N.D. 

Cal. filed March 31, 1982). See also Leesona Corp. v. Varta Batteries, Inc., 522 F. 

Supp. 1304,1311-12 & n.18 (S.D.N.Y. 1981) (parties asked to prepare a statement 

of the technical issues for inclusion in written instructions to the expert). 

73. Kerasotes Mich. Theaters v. National Amusements, No. 85-CV-40448-FL 

order appointing expert under Rule 706 (E.D. Mich. filed Feb. 2,1989). 

74. Elliott has proposed that Rule 706 process be used to appoint an expert to 

conduct a "peer review" of the scientific acceptability of the methods used by the 

parties' experts to reach their conclusions. E. Donald Elliott, Toward IncentiveBased Procedure: Three Approaches for Regulating Scientific Evidence, 69 B.U. L. Rev. 

487 (1989). Under the proposal, a judge would make a determination of "whether 

there would be 'substantial doubt' among qualified scientists concerning the basis for an expert's testimony." Id. at 508. The purpose of the experts would be to 

assess the approaches of the parties' experts and not to present a view on the 

merits of the dispute. [d. at 510. Query whether the "substantial doubt" standard 

in the proposal alters the legal standard for judging the admissibility of the evidence or, if admitted, the legal standard for applying the burden of proof in a 

civil case. 

75. In one reported case, the court invited the parties to bring their own experts to participate in the conference at which the judge instructed the court-appointed expert. United States v. Articles ... Provimi, 74 F.R.D. 126, 127 (1977), 

supplementing 425 F. Supp. 514 (D.N.}. 1977). A joint meeting of the experts at 

that stage could initiate a process of assembling common information for all of 

the experts. 

38 Court-Appointed Experts 
The court also permitted the expert to interview, on the record, all lay 

and expert witnesses, and to view the site of the dispute?6 

In another case, the court provided for the expert's participation in the 

discovery process.77The expert, a law professor with special expertise in 

antitrust law, was to consider all pleadings and writings of the parties 

and advise the court and the parties about "the discoverability of technical matters" and the "nature [of], ... reason for, and terms of protective 

orders." The expert also was to advise the parties as to additional discovery that might be necessary to render an opinion on the technical issues. 

The expert was given explicit power to call meetings to resolve disputes 

about the formulation of the technical issues or about discovery. 

Disputes not resolved through this process would be brought to the 

court. In that case, the court extended the process of developing information through the final pretrial conference. After providing for a written 

report and deposition of the expert, the court ordered the parties to exchange written expert reports with each other and the court's expert. The 

court also ordered the parties' experts to submit to depositions that 

would include questioning by the court's expert. After hearing and crossexamining the parties' experts, the court's expert could revise her written 

report. 

Judges found little need to clarify instructions. Those who found such 

a need reported using informal mechanisms, such as conference calls or 

communication through their law clerks, as well as more formal approaches, such as issuing supplemental orders or discussing issues at a 

pretrial conference. In the context of complex institutional reform litigation, with the court's expert also serving as a special master, one court 

reported the need for a series of conferences to obtain information that 

would permit more precise instructions as technical information unfolded. For the most part, however, concerns about the process of instructing an expert appear to be unfounded. Judges seem to have 

adapted flexibly to the need for continued instruction and to have involved the parties in the process. 

Ex Parte Communication 

Communication between the judge and the expert 

Rule 706 does not explicitly address the issue of whether the judge and 

the appointed expert may communicate ex parte during the course of the 

76. Students of the Cal. Sch. for the Blind v. Riles, No. Civ.S.80-473-MLS, at 6-7 

(N.D. Cal. filed March 31, 1982). 

77. Kerasotes Mich. Theaters v. National Amusements, No. 85-CV-40448-FL 

order appointing expert under Rule 706 (E.D. Mich. filed Feb. 2, 1989). 

Communication with the Appointed Expert 39 
40 

litigation. Case law and canons of judicial ethics discourage off-therecord contacts between a judge and an expert witness. Reacting to ex 

parte communication between the district court and an expert, one appeals court ruled that "if any experts are appointed to advise the district 

court on any further matters in this litigation, they shall prepare written 

reports, copies of which shall become part of the record and shall be 

made available to all parties or their attorneys.,,78 Another appellate tribunal recommended that all communications with an expert be conducted in either an on-the-record conference in chambers or an on-therecord conference call?9 The norm, as stated in the Code of Conduct for 

United States Judges, is that a judge should not consider "ex parte or 

other communications on the merits ... of a pending or impending proceeding."so The scope of the term "ex parte" is not defined further. 

Whether this concept is applicable to court-appointed experts is unclear. 

A broad prohibition of ex parte communications between a judge and 

a court-appointed expert would impede necessary communication when 

the expert is appointed to serve as a technical advisor to the court,S] a 

78. Bradley v. Miliken, 620 F.2d 1143, 1158 (6th Cir.), cert. denied, 449 U.s. 870 

(1980). 

79. United States v. Green, 544 F.2d 138,146 n.16 (3d Cir. 1976); cf. Leesona 

Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304,1312 (S.D.N.Y. 1981). In Green, the 

court presumed that the general prohibition on ex parte communication between 

the court and a witness applied, and the court carved out a limited exception. The 

district judge and a law clerk had communicated with the expert over the phone 

about observations of the defendant's behavior in court. The fact that they had 

talked was placed in the record, and defendant's counsel had an opportunity to 

cross-examine the expert. The Third Circuit recited as a general rule that "the 

court should avoid ex parte communications with anyone associated with the 

trial, even its own appointed expert," but found no violation of due process and 

no "reversible error" in the circumstances of the case. Green, 544 F.2d at 146 n.16. 

The court cautioned, however, that "a proper way [to proceed] would be to utilize an on-the-record conference in chambers or an on-the-record conference call 

so that counsel for all 'parties may participate." Id. 

80. Canon 3(A)(4) of the Code of Conduct for U.s. Judges provides that "la] 

judge should accord to every person who is legally interested in a proceeding, or 

the person's lawyer, full right to be heard according to law and, except as authorized by law, neither initiate nor consider ex parte or other communications on 

the merits or procedures affecting the merits of a pending or impending proceeding." Judicial Conference of the United States, Code of Conduct for U.s. Judges 1­

9 (Rev. Sept. 1987). 

81. For illustrations of the contexts in which such discussions took place and 

for a description of some safeguards short of prohibition, see discussion at note 

88 and related text. 

Court-Appointed Experts 
role analogous to that of a judicial clerk. In such cases either the parties 

consented to off-the-record discussions between the judge and the expert 

or the court relied on its broader inherent power to appoint the expert as 

a technical advisor. In either event, the very purpose of the appointment 

was to secure an expert who would "act as a sounding board for the 

judge-helping the jurist to educate himself in jargon and theory disclosed by the testimony and to think through the critical technical problems.,,82 That educational function seems to contemplate ex parte communication, albeit with procedural safeguards.83 In the analogous context of seeking "the advice of a disinterested expert on the law applicable 

to a proceeding before the judge," the Code of Conduct for United States 

Judges permits the judge to obtain such advice and outlines a procedure 

for advising the parties about the consultation.84 

Our interviews revealed considerable ex parte communication between judges and experts as well as some confusion concerning the 

proper standard. More than half of the judges who responded to the 

question "Did you communicate directly with the expert outside of the 

presence of the parties?" answered in the affirmative.85 About half of the 

judges limite.:l their ex parte discussion to procedural aspects of the 

expert's service--including matters of availability.86 Often lengthy ex 

parte communications were required to recruit an expert. As one judge 

82. Reilly v. United States, 863 F.2d 149, 158 (1st Cir. 1988). See also Burton v. 

Campbell, 793 F. Supp. 1329 (D.s.C. 1992). 

83. Reilly v. United States, 863 F.2d 149, 158, 159-60 (Ist Cir. 1988) (ground 

rules included advising parties if expert ranged into area not discussed in briefs; 

appellate court recommends inclusion of a comprehensive job description on the 

record and submission of an affidavit of the expert's compliance with the ground 

rules at the end of the appointment). 

84. The relevant portion of Canon 3(4), as an exception to the rule regarding ex 

parte communication recited in note 80 above, provides that a judge "may obtain 

the advice of a disinterested expert on the law applicable to a proceeding before 

the judge if the judge gives notice to the parties of the person consulted and the 

substance of the advice, and affords the parties a reasonable opportunity to 

respond." Judicial Conference of the United States, Code of Conduct for U.s. 

Judges 1-9 (Rev. Sept. 1987). But the reader should note that at least one court has 

held that "the adversary system ... precludes the court from receiving out-ofcourt advice on legal issues in a case." Reed v. Cleveland Bd. of Educ., 607 F.2d 

737,748 (6th Cir. 1979). 

85. Two-thirds of the multiple users of the Rule 706 process reported ex parte 

communication with an expert in at least one case. 

86. One judge limited discussion further: he advised the parties that he would 

meet with the expert for dinner the evening before trial, that they were welcome 

to attend, and that the case was not to be discussed. 

Communication with the Appointed Expert 41 
said: "I communicated extensively with ... [the prospective expert] in 

chambers prior to the appointment to convince him to accept it." 

Some judges expressly structured the work of the court-appointed expert to prevent any danger of ex parte contact by, for example, instructing the expert to communicate only through formal reports. At least one 

judge, however, regretted limiting ex parte communication, saying that 

he "would not use an expert again unless I could discuss matters privately. [The court-appointed expert] ... did not educate me on a one-toone basis and that is what I needed." 

The remaining judges communicated with the court-appointed experts on at least some occasions to elicit technical advice outside the 

presence of the parties. In most of these situations the very purpose of 

the appointment was to provide the judge with one-ta-one technical advice. We did not systematically ask about consent, but some judges indicated that the parties expressly consented to the ex parte communications. In all other cases it appeared from the context of the interviews 

that the parties were generally aware of the arrangements and either expressly consented or failed to object. For example, one judge had the 

"prior, general permission of the parties" to communicate on a one-toone basis with the expert. The parties expressly "agreed to waive their 

right to a report" from the expert and "to permit continuing dialogue 

during the trial and the preparation of my opinion." In addition to dialogue about technical issues in the case, the judge asked the expert to review a draft opinion for technical errors. 

In one case the communication with the expert was a side-by-side review of documents claimed to be privileged. The parties selected the expert, participated in the process of instructing the expert, and did not 

oppose the procedure. The expert advised the judge of the business purpose, setting, and significance of each document. In another case, with 

the permission of the parties, the expert sat with the judge throughout a 

lengthy trial and discussed the evidence with him during breaks and at 

the end of the day. Neither the judge nor the expert disclosed the contents of these discussions to the parties. 

Several judges devised procedures to subject their contact with a 

technical advisor to some of the checks and balances of the adversary 

system. For example, one judge communicated ex parte with the expert, 

but made a record of the discussions and disclosed the exact content to 

the parties. Another judge indicated that the parties' agreement to ex 

parte discussion was conditioned on his reporting the substance of such 

discussions to the parties. These procedures inform the parties of the 

content of the judge's information about a case and allow them an 

opportunity to darify, rebut, or even reinforce the expert's statements. By 

notifying the parties of the substance of discussions and granting the 

42 Court-Appointed Experts 
parties an opportunity to respond, judges comport with the spirit of the 

limited permission for ex parte communication with legal experts in the 

Code of Conduct for United States Judges.B7 Such procedures may also 

improve the efficiency of the litigation by focusing the attention of all 

participants on the same issues. 

Communications between the parties and the expert 

Rule 706 also fails to address the question of whether ex parte communication should be permitted between the expert and the parties.8B Some 

judges apply the same rules to court-appointed experts that they would 

apply to themselves.89 This would seem especially apt for cases in which 

the expert, as a technical advisor, is intimately involved in the decisionmaking process. Even in the absence of an explicit order, however, 

attorneys should be aware that "ex parte attempts to influence the expert 

are improper." 90 

We found that about half of the judges who responded permitted direct, separate communication between the expert and one or more parties. Often, the nature of the appointment and the role of the expert led 

naturally, if not inexorably, to that practice. The clearest example was the 

medical examination of a party by an expert to determine the extent of 

87. See discussion at supra note 69. 

88. During the original consideration of the Federal Rules of Evidence, a 

committee from the American Bar Association suggested that a direct prohibition 

on ex parte communication by a party with a court-appointed expert should be 

added to Rule 706. While the suggested procedure was not adopted, Weinstein & 

Berger suggest that such a prohibition "may prove useful to the court and parties 

in using" the appointment procedure. Weinstein's Evidence, supra note 2, at 

'lI 706-20, n.2l. 

89. See, e.g., Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304,1312, n.l8 

(SD.N.Y 1981) (parties were not permitted to communicate directly with the 

court's expert; materials selected by the parties for the expert to use were transmitted through the court and entered in the court's docket); see also Kerasotes 

Mich. Theaters v. National Amusements, No. 85-CV-40448-FL, order appointing 

expert under Rule 706 (E.D. Mich. filed Feb. 2, 1989) (expert "shall be limited in 

the same manner as judicial officers as to ex parte communications" unless parties stipulate to alterations or move for the court to alter the restrictions). 

90. Weinstein's Evidence, supra note 2, at 'lI 706-20, n.21. See also Model Code of 

Professional Responsibility DR 7·110 (1980) ("a lawyer shall not communicate... 

as to the merits of a cause with a judge or an official before whom the proceeding 

is pending ..." [emphasis added]). Presumably, the expert is an "official" agent 

of the court. Cf. Model Rules of Professional Conduct Rule 3.5 (1983) ("A lawyer 

shall not (a) seek to influence a judge ... by means prohibited by law; (b) 

communicate ex parte with ... [a judge] except as permitted by law. ."). 

Communication with the Appointed Expert 43 
44 

injuries. Normally such examinations are conducted in private (Le., technically ex parte) with a copy of the report furnished to the }Jarties and the 

court.91 Adversarial participation would invade the privacy of the party 

and might compromise the expert's ability to obtain information on 

which to base a diagnosis. 

Several judges would permit ex parte communication between parties 

and expert witnesses under special circumstances. Most of these instances concerned investigation of facts to support the expert's assessment. For example, in a case in which an appointed expert also served as 

a special master, the judge permitted the expert to clarify questions that 

he or she had posed by communicating directly with the parties. The 

judge instructed the expert to disclose fully to the parties all separate 

communications. In a more traditional 706 appointment, the expert was 

required to examine a list of secret ingredients in a product. The judge 

and parties carefully crafted a way for the defendant's agent to communicate the trade secrets so that only the secrets were disclosed to the expert and no discussion of other issues was permitted. In another case, the 

judge permitted the expert to meet separately with the parties as a part of 

the expert's assignment to formulate a proposed remedial decree. The 

judge reasoned that "because [the expert) was looking at alternative 

remedies, he needed to look behind the claims and identify the needs of 

the parties.,,92 

In several cases, ex parte communication between an expert and a 

single party appeared to have been unnecessarily closed. While there 

may have been a special need to exclude the opposing party in these 

cases, none was apparent. For example, in one institutional case the 

judge "permitted the expert to communicate directly with the officers at 

91. Cf. Fed. R. Civ. P. 35, which provides for a physical examination of a party 

and production of a report. Presumably the party who calls for the examination is 

not entitled to be present during it. The plain language of Rule 35 does not confer 

such a right. In any event, the practice under Rule 35 could serve as a guide 

regarding physical or mental examinations under Rule 706. The ABA exempted 

medical examinations from their proposed restriction on ex parte communication 

between a party and a court-appointed expert. Weinstein's Evidence, supra note 

2, at 'lI 706-20, n.21. 

92. To the extent that the expert was exclusively serving as a mediator, this 

seems fair. If, however, the expert is also playing a role in the formulation of a 

decree, there would seem to be a need for procedures that would permit the parties to confront the "facts" gleaned from ex parte interviews. The same concerns 

that inhibit some trial judges from engaging in settlement discussions seem to 

apply. See generally D. Marie Provine, Settlement Strategies for Federal Judges 21­

41 (Federal Judicial Center 1986). 

Court-Appointed Experts 
the ... [institution] with the idea of getting the fullest possible report of 

conditions." In another case, the judge permitted the expert to "interview 

the parties about entries in their books and records" and to seek 

"justification or explanation for various entries." In yet another case the 

judge stated that "the nature of the task, including the collection of 

billing records, required that the parties be able to meet with the expert 

to furnish information." 

In each of these cases the ex parte contact seemed to be more a matter 

of convenience than necessity. Permitting the opposing party to participate might prevent due process challenges. Because expert communication with parties separately may, in effect, generate evidence outside of 

the adversarial system, due process may require that the adverse party 

be notified of the ex parte contact and be given an opportunity to be present at the meeting(s) or, at least, to respond to the substance of the 

communication. Absent precautions, a broad grant of investigative authority to an appointed expert may be susceptible to challenge on due 

process grounds. We did not uncover any such challenges relating to 

court-appointed experts, but several cases dealing with the powers of 

special masters may provide useful analogies.93 

Pretrial Reports and Depositions 

Unless the parties agree otherwise, the court-appointed expert must advise the parties of any findings, submit to a deposition by any party, and 

respond to cross-examination of his or her testimony, if any, at tria1.94 

93. See Ruiz v. Estelle. 679 F.2d 1115 (5th Cir. 1982). In that case, the court 

found the order of appointment of a special master to be "too sweeping" in that it 

permitted the special master to submit reports "'based upon his own observations and investigations in the absence of a formal hearing before him.'" The 

court found that such a broad power-the equivalent of permitting ex parte 

communication to become part of the findings without ad versa rial testing-exceeded the traditional power given masters and "denies the parties due process." 

[d. at 1162-63. Cf. Young v. Pierce, 822 F.2d 1368, 1375 (5th Cir. 1987), order on remand. 685 F. Supp. 975,982-83,985 (E.D. Tex. 1988) (special master given authority to interview employees of government agency-defendant, subject to the rights 

of the parties to notice and the opportunity to be present at such interviews and 

to object to questions). 

94. Fed. R. Evid. 706(a). See also Unique Concepts Inc. v. Brown, 659 F. Supp. 

1008, 1011 (S.D.N.Y. 1987). Cf. Reilly v. United States, 863 F.2d 149, 159 (lst Cir. 

1988) ("where an advisor was not an evidentiary source, there was neither a right 

to cross-question him as to the economics of the situation nor a purpose in doing 

so"). Weinstein and Berger observe that the right of a party to depose the courtappointed expert in a criminal case "goes considerably further than any other 

Communication with the Appointed Expert 45 
Findings may be presented in a written report, by deposition, in testimony in open court, or through some combination of the above.95 

We found that, except when used as a technical advisor,96 the expert 

invariably reports findings to the parties. In several cases the parties met 

informally with the expert to discuss his or her report. Generally, the 

findings are in the form of a written report furnished to the court and the 

parties. In two instances the expert reported orally to the parties, once by 

deposition, and once in a meeting in the judge's conference room. In the 

few cases where the expert was appointed immediately before or during 

trial, the expert reported by way of testimony at the trial or hearing. One 

judge reported the practice of using the report of the expert as the equivalent of direct testimony at the tria1.97 

Three of the judges, all of whom had appointed experts more than 

once, asked the expert for a preliminary report, then permitted the expert 

to modify this report after reviewing the reports of the parties' experts. 

The use of a preliminary report "serve[s] to give [the judge] an independent report" and allows "an opportunity to take into account the reports 

of other experts." Formal depositions are relatively infrequent, occurring 

in about one case in four. 

rule or statute in authorizing depositions in a criminal case." Weinstein's 

Evidence, supra note 2, at 'lI 706-21. 

95. Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 1312 (S.D.N.Y. 

1981). One district court has used a procedure in which the parties waive their 

rights to disclosure of the expert's report and conclusions. SAS Inst., Inc. v. S&H 

Computer Sys., 605 F. Supp. 816 (M.D. Tenn. 1985). An apparent purpose of the 

waiver of a report was to allow the expert to report directly to the court and perhaps also assist the court in framing an opinion. Note, however, that the role of a 

technical advisor is to assist the court regarding factual issues, not legal conclusions. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir. 1987), 

cert. denied, 485 U.s. 961 (1988) (court-appointed expert "was a technical, not a legal, expert. He was not expected to, and did not, analyze infringement under a 

legal standard."). See also Reilly v. United States, 863 F.2d at 157-59 (1st Cir. 1988) 

(technical advisor did not usurp judicial functions based on limits placed by the 

court and evidence of compliance with those limits). 

96. As noted above in the discussion of ex parte communication between the 

judge and the expert (see discussion at supra notes 87-89), in several cases the expert reported directly to the judge without any report to the parties. 

97. See discussion infra at note 118. 

46 Court-Appointed Experts 
Presentation of Expert Opinion in Court 

Frequency and nature of testimony 

Although Rule 706 seems to anticipate that court-appointed experts will 

testify at tria1,98 our earlier review of reported decisions found that courtappointed experts can serve a range of nontestimonial functions during 

different stages of the litigation.99 Although published opinions reveal 

instances of court-appointed experts presenting testimonr at trial, 100 

references to nontestimonial functions were more frequent. 10 

98. Rule 706 is captioned "Court AppOinted Experts." The text of the rule, 

however, refers exclusively to "expert witnesses" or "witness" and is located in 

the Federal Rules of Evidence. See Wheeler v. Shoemaker, 78 F.RD. 218, 227 n.14 

(D.RI. 1978) ("court-appointed expert's function is solely to furnish impartial 

testimony and opinion respecting his particular area of expertise to assist the jury's evaluation of the partisan experts"). 

99. Tom Willging, Court-Appointed Experts 18-23 (Federal Judicial Center 

1986). 

100. See, e.g., Phillips Oil Co. v. OKC Corp., 812 F.2d 265 (5th Cir.), cert. denied, 

484 U.S. 851 (1987) (expert testimony was required to explain accounting interpretation of term in contract); U.S. Fidelity & Guarantee Co. v. Williams, 676 F. 

Supp. 123 (E.D. La. 1987) (in suit brought by marine insurer to recover amounts 

paid for damage to yacht, an expert was appointed to testify as to the generally 

accepted meaning of a particular provision in an insurance contract); Grothusen 

v. National RR Passenger Corp., 603 F. Supp. 486, 490 (E.D. Pa. 1984) (testimony 

on disputed issue of damages in Federal Employer's Liability Act (FELA) case); 

Camrex Contractors v. Reliance Marine Applicators, 579 F. Supp. 1420, 1429 

(E.D.N.Y. 1984) (court "could have" appointed expert on commercial practices to 

clarify contract term); Eastern Airlines v. McDonnell Douglas Corp., 532 F.2d 957, 

1000 (5th Cir. 1976) (appeals court suggested that "jury might benefit from the 

testimony of a neutral expert" in computing lost profits); Pennwalt Corp. v. 

Becton, Dickinson & Co., 434 F. Supp. 758, 761 n.8 (D.N.J. 1977) (athletic director 

testified that jock itch was familiar term in the 1960s and 1970s). 

101. See Tom Willging, Court-Appointed Experts 18,20-21 (Federal Judicial 

Center 1986). Authority to appoint a court-appointed expert in a nontestimonial 

capacity is found in the court's inherent power to appoint an expert or master 

and its power under Fed. R Civ. P. 53 to appoint a special master. See Reilly v. 

United States, 863 F.2d 149, 154 (1st Cir. 1988) (court has inherent power to appoint an expert as an advisor and this power is not subject to Rule 706, unless the 

expert acts as a witness); Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746 (6th 

Cir. 1979) (authority to appoint nontestimonial experts to assist in the remedial 

phase of a case derives from Fed. R Civ. P. 53 or the inherent power of the court, 

not Fed. R Evid. 706); see also Hart v. Community Sch. Bd., 383 F. Supp. 699, 762­

67 (E.D.N.Y. 1974) (appointment of an "expert master" under Fed. R Civ. P. 53 

and Fed. R Evid. 706). 

Communication with the Appointed Expert 47 
Our interviews revealed more testimonial use of experts than suggested by published opinions. Roughly half of the cases discussed by 

judges involved court-appointed experts' testimony presented in court, 

usually at a trial, less frequently at a pretrial evidentiary hearing. On the 

other hand, settlement was less frequent than commentary on Rule 706 

led us to expect.102 These findings are consistent with our finding that 

most judges who use Rule 706 reserve the process for cases with difficult 

technical issues that are not likely to settle. HB 

Relatively few (approximately one in five) of the testimonial uses of 

court-appointed experts occurred in jury trials. This supports our earlier 

finding that enhancement of judicial decision making is the primary concern leading to such appointments.104 

Advising jury of court-appointed status 

One of the controversial aspects of Rule 706 is that it explicitly grants the 

trial judge discretion whether to inform the jury that the expert was appointed by the court.lOS Commentators such as the Association of Trial 

Lawyers of America have opposed informing the jury of the expert's status. Their rationale is that jury knowledge that the court appointed the 

expert will undermine the adversarial system and dominate the jury decision-making process.106 One court concluded that a court-appointed 

expert "would most certainly create a strong, if not overwhelming, impression of 'impartiality' and 'objectivity' [which] could potentially 

transform a trial by jury into a trial by witness."107 

Reference to the court's role in appointments of an expert, however, 

has rarely been challenged in litigation, and there is little case law on the 

issue.108 When faced with such a challenge, courts may be concerned that 

scientific proof will "assume a posture of mystic infallibility in the eyes 

102. See discussion at supra notes 45-46. 

103. See discussion at Chapter 2. 

104. See discussion at Chapter 2. 

105. Fed. R Evid. 706(c). 

106. See, e.g., Nicholas J. Bua, Experts-Some Comments Relating to Discovery and 

Testimony Under New Federal Rules at Evidence, 21 Trial Law. Guide 1 (1977); 

Weinstein's Evidence, supra note 2, at 1706-26. 

107. Klan v. Mirro Aluminum Co., 88 F.RD. 351, 356 (E.D. Mich. 1980). 

108. In one district court case, the plaintiff challenged the disclosure of the 

court-appointed designation to the jury. The trial court overruled plaintiff's motion to set aside the jury verdict and grant a new trial. The only stated reason was 

that there was no abuse of discretion because the expert's testimony related to a 

"disputed issue." Grothusen v. National RR Passenger Corp., 603 F. Supp. 486, 

490 (E.D. Pa. 1984). 

48 Court-Appointed Experts 
of a jury of laymen.,,109 If party experts can achieve such stature, the 

court's imprimatur could transform an expert's testimony into an 

impenetrable edict.l1o The trial court retains discretion, however, to 

decline to place a judicial imprimatur on a witness if concerned that the 

jury will give undue weight to a court's expert.1l1 

Only seven jury trials were identified from the interviews in which 

the court-appointed expert offered testimony in court. 112 In all but one of 

these cases, the judge or the party calling the witness informed the jury 

of the expert's court-appointed status. In the only exception, it appears 

that neither party was sufficiently advantaged by the report to want to 

underscore its source. At the other extreme, one judge reported that the 

advantaged party called the expert "with great flourish," had the order 

appointing the expert read to the jury, and asked a series of questions 

109. United States v. Addison, 498 F.2d 741,744 (D.c. Cir. 1974). Note that 

experimental social scientific research does not support the full, dramatic thrust 

of that argument. See, e.g., Nancy J. Brekke, Expert Scientific Testimony in Rape 

Trials 38-40 (1985) (unpublished Ph.D. dissertation, University of Minnesota) 

(effects of the presence of an expert for the prosecution on final verdicts are quite 

small, accounting for approximately 8% of the variance); Elizabeth F. Loftus, 

Impact of Expert Psychological Testimony on the Unreliability of Eyewitness 

Identification, 65 J. Applied Psych. 9 (1980) (inclusion of a summary of expert evidence regarding the pitfalls of eyewitness identification produced statistically 

significant reduction from 57% to 39% in guilty verdicts; these differences, however, are marginal and do not show domination of the jury by the experts); see 

also infra note 126. 

110. See, e.g., Weinstein's Evidence, supra note 2, at 'II 706-26 and sources cited 

therein. 

111. Weinstein's Evidence, supra note 2, at 'II 706-27. See also Tahirih V. Lee, 

Court-Appointed Experts and Judicial Reluctance: A Proposal to Amend Rule 706 of the 

Federal Rules of Evidence, 6 Yale L. & Pol'y Rev. 480,500 (1988) (suggesting that 

Rule 706 be amended to include a duty of the court to caution the jury against excessive reliance on the testimony of the expert appointed by the court). 

112. Aside from the presence of a technical issue of fact, the jury cases had few 

similarities. Two were product liability actions, one dealing with claims of 

asbestos-related disease and the other with a claim of enhanced risk of cancer 

from exposure to a product. Two of the cases were criminal proceedings, both 

using experts to respond to a defendant's asserted need. One of the criminal cases 

involved use of a handwriting expert; the other involved use of a psychiatrist to 

test the competence of a prosecution witness. Two of the other civil cases 

included use of financial experts, one in a shareholder action, the other in a 

breach of contract case. The final case related to use of a polygraph expert to 

evaluate evidence that each side planned to use. 

Communication with the Appointed Expert 49 
emphasizing neutrality, the source of the appointment, and the method 

of payment. 

We found no consensus about whether courts should permit or prohibit the identification of an expert as appointed by the court. One judge 

declared that the jury "should know" because the fact that "one of the 

experts was not paid by a party" is "relevant to the assessment of credibility." Another found a benefit from disclosure in that "the knowledge 

that such a disclosure will be made is effective in bringing about settlement." One judge would vary the disclosure with the type of case, permitting disclosure of court sponsorship of a technical expert in a patent 

case, and not permitting it of an orthopedic expert in a personal injury 

case. 

If the court-appointed status of the expert is not to be divulged, how 

will the testimony of the witness be communicated to the jury? If neither 

party chooses to call the expert, will the testimony be presented? If so, 

who will call the expert and conduct direct examination? Rule 706 does 

not address these issues directly; it requires only that the court-appointed expert "be subject to cross-examination by each party, including 

a party calling him as a witness.,,113 This implies that there will be occasions when a party calls the expert and conducts direct examination as 

well as cross-examination. 

In two of the cases in our study, the judge disclosed the appointed status of the expert and issued a cautionary instruction that the fact of court 

appointment should not result in giving greater weight to that expert 

than to the parties' experts. One of the judges who reported using the 

cautionary instruction said, "[1 am] not satisfied with the current procedure because I don't think the jury should be influenced by the act of the 

judge in appointing the expert." 

Two judges who had used court-appointed experts on multiple occasions indicated that they would use in limine rulings to prevent the 

lawyers from calling attention to the court-appointed status of the witness. One recommended the following procedure to disguise the status: 

"1 would allow the favored party to call the expert and allow the other 

party to cross-examine. I would instruct the lawyers not to mention the 

fact of appointment." 

Our impression is that none of the judges doubt that the status of the 

expert is relevant to credibility. The question is whether a jury can weigh 

credibility without being unduly impressed by the neutral posture and 

apparent judicial imprimatur of the court's expert. As we discuss below, 

judges and juries both tended to reach conclusions that were consistent 

- ..--..- ..-~..- ..- ...--­

113. Fed. R. Evid. 706(a). 

50 Court-Appointed Experts 
with the advice of a court-appointed expert. Given that finding, concern 

about undue influence seems reasonable. 

Sequencing the testimony of the court-appointed expert 

How should the court-appointed expert's testimony be sequenced in relation to the testimony of the parties' witnesses? The timing and sequence of the testimony may have serious effects on the jury's recollection of the evidence and may distort the normal primacy and recency 

benefits that accompany the opening and closing presentations during 

the trial. 114 A presentation by the expert in either the beginning or the 

end of the trial can be expected to have greater influence than a presentation during the middle of the trial <e.g., after the close of the plaintiff's 

case and before the defendant presents direct testimony). The logic of the 

case, however, might suggest a different sequence-for example, after 

the testimony of the experts for both parties.llS The trial court has discretion to control the order of presentation of the evidenceY6 With little 

additional guidance from the rules or case law, courts have explored this 

question on a case-by-case basis. 

The judge in one series of cases called an expert and asked three 

questions to elicit the expert's opinion.ll7 The party most disadvantaged 

by the expert's report was then allowed to cross-examine. In the other six 

cases in which a court expert testified at a jury trial, the judge more or 

less left the issue of presenting the expert to the parties. Indeed, in none 

of the six cases did the judge ask any questions of the expert. The absence 

of questions from the judge contrasted starkly with the practices of 

judges in bench trials: in almost all of the bench trials, the judge reported 

asking questions of the expert. 

114. See John W. Thibault & Laurens Walker, Procedural Justice: A 

Psychological Analysis 54-66 (1975). See also Irwin A. Horowitz & Tom Willging, 

The Psychology of Law 110-11 (1984). 

115. In Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 1311 n.17 

(S.O.N.Y. 1981), the court, in a bench trial of a patent infringement action, expressly instructed the court-appointed expert to attend the trial during the testimony of witnesses for the parties and to testify after completion of the parties' 

cases. 

116. Fed. R. Evid. 611(a). 

117. The questions were "What did you do to prepare for this appearance?"; 

"00 you have an opinion as to whether or not plaintiff has an asbestos-related 

disease?"; and "What is that opinion?" See generally Carl B. Rubin & Laura 

Ringenbach, The Use of Court Experts in Asbestos Litigation, 137 F.R.O. 35 

(1991). For another instance of experts appointed to aid the court in asbestos litigation, see In re New York City Asbestos Litigation, 1992 U.s. Dist. LEXIS 3721 

(S.0N-Y.1992). 

Communication with the Appointed Expert 51 
52 

In two of the six cases described above, the judge reported that the 

party favored by the court-expert's report called the expert and conducted a direct examination. In all cases, the disadvantaged party crossexamined. In cases in which the judge directly called the expert, both 

parties had an opportunity to cross-examine. Although we didn't ask 

specifically, in no instance did we receive any indication that the crossexamination was abusive or even rigorous. 118 

Effect of the testimony of the appointed expert 

Our interviews revealed that juries and judges alike tend to decide cases 

consistent with the advice and testimony of court-appointed experts. We 

asked, "Was the disputed issue resolved in a manner consistent with the 

advice or testimony of the 706 expert?" Of fifty-eight responses, only two 

indicated that the result was not consistent with the guidance given by 

the expert. Both of those cases involved bench trials in which the judge 

pursued a legal analysis that was independent of the technical issues. In 

one, the judge decided about an appropriate remedy but found it useful 

to have the expert's analysis of the strengths aFld weaknesses of an alternative proposal. In the other, the judge ruled that the plaintiff had not 

met its legal burden of proof. ll9 Two of the fifty-eight judges indicated 

that the expert did not give any advice, but simply had explained the 

technical issues and the testimony of the parties' experts. Three judges 

indicated that the information provided by the expert was used in conjunction with other information to shape a resolution of the issue. 

In the remaining fifty-one cases, including seven jury trials, the outcome was consistent with the expert's advice or testimony.no Note that 

we asked only if the outcome was consistent with the advice of the appointed expert. Twenty-one of the judges who indicated outcomes consistent with the appointed experts' testimony also volunteered the information that the experts' opinions were not the exclusive, or even the 

most important, factor in determining the outcome of their cases. Seven 

of the twenty-one cases settled following the submission of the expert's 

118. We asked "Was the expert cross-examined?" Fifteen judges (of the twenty 

judges reporting the activities of experts who had offered testimony at a trial or 

hearing) indicated explicitly that there had been cross-examination by one or 

both parties. None volunteered any suggestion that the expert was the least bit 

ruffled by the procedure. 

119. In the latter case, the plaintiff argued on appeal that the court should have 

followed the expert's analysis. As noted supra at note 77, the court of appeals 

carefully distinguished between the technical and the legal issues. 

120. For responses to a question about whether juries were overwhelmed by 

the testimony of a court-appointed expert, see discussion infra at notes 124-26. 

Court-Appointed Experts 
report or testimony, and the judges believed that the resolution was 

consistent with the report of the appointed expert. In the remaining 

fourteen cases the judge indicated that the report or testimony of the appointed expert provided a context for understanding and evaluating 

other evidence presented by the parties. 

In eleven of those fourteen cases the judge indicated that he or she followed the advice of the appointed expert, either generally or regarding 

one of several issues. For example, one appointed expert set forth a general plan for restructuring a business following a declaration of 

bankruptcy. The parties made additions and alterations to this plan 

which the judge then adopted. One appointed expert outlined the historical and legal backgrounds of the prohibitions on sex discrimination in 

athletics, which were then used in assessing the testimony of the parties' 

experts. In another case, the judge used an expert on institutional conditions while maintaining that the expert was "neutral and recited the 

conditions" without giving "a final opinion statement." At the same 

time, the expert gave the judge "ideas about solutions" that benefited all 

parties. 

In three of the fourteen cases the judge had questioned one party's 

expert testimony, but the appointed expert confirmed that testimony. 

While the resolutions of the cases were consistent with the testimony of 

appointed experts, it is clear that the testimony of each appointed expert 

was one of several sources of information influential in resolving the 

case. In one of the three cases, the judge reported that the Rule 706 expert 

confirmed the testimony offered by the plaintiff's expert, removing the 

judge's doubts about the plaintiff's evidence and paving the way for a 

ruling that the plaintiff had met his or her burden of proof. In a sentencing matter, the judge "was able to use the expert's testimony to craft 

modifications of the sentence and recommendations for conditions of 

confinement." In another case, the expert confirmed the judge's impression about the abnormality of a defendant's record-keeping practices on 

a critical point. 

In discussing their appointment of an expert, judges often expressed 

enormous personal and professional respect for the expert.121 In at least 

two cases, the expert was appointed primarily to serve as a technical 

advisor to the judge and not as a witness. In such cases the judge's 

121. In one case the judge went so far as to say the expert was "probably the 

most wonderful man I ever met. ... He was honest, self-effacing, dedicated, 

respected, and objective." 

Communication with the Appointed Expert 53 
54 

rapport with the expert implied a faith in the expert's credibility that 

could easily have led the judge to follow the advice of the expert.122 

One judge in a bench trial reported that he gave more credence to the 

706 expert and to the parties' experts whom the 706 expert agreed with 

than to the opposing expert. Another judge reported that the appointed 

expert's testimony was "very influential" in a bench trial. Another judge 

"put more credence in the 706 expert because he was neutral." In yet another case, the judge reported mixed reliance on a 706 expert: "In some 

areas, his testimony dominated; in others, the parties' experts had superior knowledge. Some [of the parties' experts1 were national experts who 

were quite knowledgeable." In only one instance did a judge indicate 

disagreement with the court's expert. 

Our final question for this chapter was (if a jury triaD "Did the testimony of the court-appointed expert appear to overwhelm the expert testimony offered by the parties?" In a dozen jury cases,123 it appears that 

the testimony of court-appointed experts dominated the proceedings. In 

general, the testimony of the court's expert affirmed the testimony of one 

of the parties' experts, thereby overcoming contrary evidence. 

The most dramatic illustration of dominance by a court expert occurred in a case in which a large number of workers claimed damages 

due to working conditions. At the behest of the court, a physician examined all of the workers and reported findings for each plaintiff. The 

physician's court-appointed status was disclosed to the jury, and the 

judge reported that lithe juries discounted the experts for each side." In 

fact, in each individual case, the jury followed the findings of the courtappointed expert, finding sometimes for the plaintiff and sometimes for 

the defendant. 

In a series of asbestos cases, a judge indicated that the testimony of the 

expert must have overwhelmed the testimony of the opposing experts. 

Each of four jury verdicts agreed with the court ex~ert that the plaintiff 

had not suffered an asbestos-related impairment.1 4 In another case in122. We did not systematically ask judges in bench trials to assess the weight 

given to experts' testimony. We did, however, elicit some responses on this point 

in discussing the relationship between experts' testimony and the outcome of the 

litigation. 

123. In addition to the seven cases elicited in our discussions with judges who 

had appointed an expert a single time, five additional cases were uncovered 

when we asked judges who were multiple users if they had ever presided at a 

jury trial at which a court-appointed expert testified. 

124. In a subsequent publication this judge has reported that the jury agreed 

with the court-appointed expert concerning the presence or absence of asbestosrelated disease in thirteen of sixteen cases. Carl B. Rubin & Laura Ringenbach, A 

Court-Appointed Experts 
volving a question of sanity, the judge was "sure the testimony of the 

court-appointed expert was decisive for the jury." In another jury trial, 

the judge found the appointed expert to be a "brilliant" person who 

"overshadowed every other expert" and "was recognized as an authority 

by the experts of both parties." In one jury case, the court's expert was 

the only expert. In yet another case, the judge said that the jury "agreed 

with" the 706 expert, but the judge found the word "overwhelm" too 

strong to describe the jury reaction. In another case the judge said the 

expert's testimony "was the most credible and was therefore given more 

weight." 

In three of the twelve jury cases judges did not find testimony of the 

court-appointed experts to dominate the jury's decision. In two, judges 

said that they were unsure of the influence of the court's expert on the 

jury. Finally, in one case the judge recalled that the jury "awarded an 

amount that reflected a compromise between the amount supported by 

the 706 expert and the amount supported by the expert of one of the parties." 

We are wary of overstating the strength of these findings in light of 

the inability of social psychologists to demonstrate greater deference to 

appointed experts by jurors in controlled laboratory settings.125 The 

Advisory Committee notes accompanying Rule 706 warn that "court-appointed experts acquire an aura of infallibility to which they are not entitled."126 Our findings of consistency between appointed experts' testimony and the resolution of disputed issues seem to justify this concern. 

When viewed in the light of the circumstances leading to an appointment, perhaps it should come as no surprise that the outcome of a case is 

greatly influenced by the testimony of an appointed expert. Since the absence of an impartial factual basis to decide the case was a prerequisite to 

the appointment, it follows that the testimony of the appointed expert is 

likely to be influential. The primary reasons for appointment of an expert 

were either a failure of the parties to offer credible expert testimony or an 

actual or anticipated conflict in the testimony of the parties' experts that 

defied resolution through traditional means. Regarding the failure of advocacy cases, we reported (in Chapter 2) that in eighteen of the thirty-six 

Role for the Court's Expert in Asbestos Litigation, The Use of Court Experts in 

Asbestos Litigation, 137 F.R.D. 35, 41 (1991). See also discussion supra at note 117. 

125. See, e.g., Nancy J. Brekke et aI., Of Juries and Court-Appointed Experts: The 

Impact of Nonadversarial Versus Adversarial Expert Testimony, 15 Law & Hum. 

Behav. 451 (1991) (jurors did not accord more weight to nonadversa rial testimony 

presented by an expert appointed by the court when compared with adversarial 

testimony presented by the party). 

126. Fed. R. Evid. 706 advisory committee's note. 

Communication with the Appointed Expert 55 
cases involving judges who had used Rule 706 only once, the judges indicated that there was a failure by one or both parties to present credible 

expert testimony. In many of these cases there was no credible evidence 

at all on the technical issue. Given a void of evidence on a critical issue, 

the court-appointed expert's testimony would necessarily be influential. 

Similarly, in cases with an unresolvable conflict among the parties' 

experts, the equipoise in the evidence prior to appointment renders the 

court-appointed expert likely to tip the scale to one side or another. Any 

other result would raise significant questions about whether there had 

been a need for an outside expert. These reasons tend to explain and 

qualify our findings. Nevertheless, the central finding is clear: judges 

who appointed an expert indicated that the final outcome on the disputed issue was almost always consistent with the testimony of the appointed expert. 

Summary 

In summary, the concerns of judges and commentators that court-appointed experts will exert a strong influence on the outcome of litigation 

seem to be well founded. Whether such influence is appropriate is a different question. In almost all cases, the jury was aware of the expert's 

court-appointed status and seemt>d influenced by the expert's apparent 

neutrality. Some judges think that it is important for the jury to know the 

status as an aid in assessing credibility. Some judges who presided over 

jury trials, however, expressed misgivings about permitting revelation of 

court-appointed status because it seemed to have led to automatic reliance on the expert by the jury. Potential controls, such as imposing in 

limine restrictions on lawyers and camouflaging the source of a witness, 

remain untested. 

Judges were, of course, always aware of the experts' status. In their 

instructions to experts and in the course of work with them, judges frequently showed a conscious effort to maintain control of the legal and 

policy analysis and decision making, while limiting technical information and advice to a subsidiary, instrumental role. Nevertheless, our interviews reveal a high degree of consistency between the outcome of litigation and the testimony and advice of court-appointed experts. 

56 Court-Appointed Experts 
Chapter 5 

Compensation of Court-Appointed 

Experts 

Payment of court-appointed experts presents an awkward problem for 

judges. Although judges appoint the experts, typically judges must turn 

to the parties for compensation. Furthermore, because an expert may 

serve long before the case is resolved, a means must be found to provide 

prompt payment while retaining the option of reallocating the expenses 

among the parties based on the resolution of the issues. Parties may resist compensating experts they did not retain and who offer testimony 

that is damaging to their interests. If the parties balk at payment the 

judge must either enforce payment by means of a formal order and a 

hearing, thereby disrupting the litigation and increasing the level of acrimony between the parties, or postpone payment, thereby leaving the 

expert uncompensated for an indefinite period. 

Interviews with judges suggest that such practical problems in providing compensation can thwart the appointment of an expert. Judges 

expressed concerns regarding payment when describing how the experts 

were compensated127 and at a number of other points in the interviews. 

When asked why more judges do not use court-appointed experts, many 

judges focused on the difficulties in providing compensation.128 When 

asked what changes in the rule would make court-appointed experts 

more useful, the most common suggestion from judges was for 

clarification of the means of compensating the expert. 129 While appointment of an expert poses many practical problems, providing a 

mechanism ensuring the prompt compensation for appointed experts 

appears to be one of the more serious ones. 

Rule 706, supplemented by statutory authority and case law, grants 

judges broad discretion in allocating the costs of appointed experts 

among the parties but allows little opportunity to turn elsewhere for 

compensation. The following sections address four different circumstances that affect the manner of compensation: special instances of land 

condemnation actions and criminal cases in which the rule permits the 

127. We asked the judges who had appointed experts, "How was the amount 

of compensation determined? Who paid?" 

128. See supra note 37. 

129. This suggestion was mentioned by ten of the nineteen judges who 

suggested changes in the rule. See also Weinstein's Evidence, supra note 2, at 

'lI'II 706-27 to -29. 

57 
expert to be compensated from public funds; matters involving general 

civil litigation (in which the court must rely on the parties for compensation); general civil litigation when one of the defendants is indigent; and 

occasions when the court wishes to employ a technical advisor as opposed to a testifying expert. 

Statutory Basis for Compensation from Public Funds 

In two circumstances-land condemnation cases and criminal casesRule 706 and related statutes authorize payment of the appointed expert 

from public funds. In land condemnation cases, all costs, including fees 

for an appointed expert to testify regarding compensation for the taking 

of property, are assessed against the government, not the property 

owner.l30 In the few instances we encountered in which an expert was 

appointed to assist in a condemnation proceeding, the fee was paid by 

the Department of Justice with little difficulty. 

Obtaining payment for experts in criminal cases follows a similar process. Again, the rule and related statutes131 permit payment of the expert's fees from public funds. The Criminal Justice Act authorizes payment of experts' expenses when such assistance is needed for effective 

representation of indigent individuals in federal criminal proceedingS.132 

In criminal cases in which the United States is a party, the Comptroller 

General has ruled that the source of payment is to be the Department of 

130. Fed. R. Evid. 706(b); Fed. R. Civ. P. 71A(l). According to the advisory 

committee notes accompanying Rule 706, "The special provision for Fifth 

Amendment Compensation cases is designed to guard against reducing constitutionally guaranteed just compensation by requiring the recipient to pay costs." It 

is not enough to merely have a case involving a taking under the Fifth 

Amendment wherein an expert is used in some capacitY. In order for the costs of 

the expert to be covered by government funds, the expert must have been appointed in direct connection to the issue of the taking. See, e.g., Sullivan v. 

Kenton County, KY, 793 F.2d 1293 (6th Cir. 1986) (text in Westlaw), where the 

court disallowed costs for an expert because he had been appointed to resolve a 

boundary dispute between two private parties, not to help resolve the Fifth 

Amendment issue involved in the case. 

131. See, e.g., Fed. R. Evid. 706(b); 18 U.S.c. § 3006A(e) (1988). 

132. 18 U.S.c. § 3006A(e) (1988). In fiscal year 1987, $1,421,332 was spent on 

psychiatrists and other experts under the provisions of the Criminal Justice Act. 

Memorandum to Chair and Members of the Judicial Conference Committee on 

Defender Services, Summary Report on Appointments and Payments Under the 

Criminal Justice Act for Fiscal Year 1988 (1988). See generally John F. Decker, 

Expert Services in the Defense of Criminal Cases: The Constitutional and Statutory 

Rights ofIndigents, 51 U. Cin. L. Rev. 574 (1982). 

58 Court-Appointed Experts 
Justice, not the Administrative Office of the U.S. CourtS.l33 Four judges 

revealed that they had appointed experts to aid in assessing the physical 

or mental condition of a defendant; three of the judges indicated no 

difficulty in obtaining payment, while one indicated some initial 

reluctance by the Department of Justice followed by prompt payment. 

Payment of Fees by Parties 

In the most common litigation context, the court appoints an expert with 

the expectation that the expert will offer testimony at a trial or hearing or 

produce a pretrial report that will facilitate settlement. Except for criminal and land condemnation cases, under Rule 706(b) "the compensation 

... shall be paid by the parties in such proportion and at such time as the 

court directs, and thereafter charged in like manner as other costS."I34 

The flexibility of the rule permits the court to rely on the parties to compensate the expert when service is rendered rather than waiting until the 

conclusion of the litigation. The court may order the advance payment of 

a reasonable feel35 for a court-appointed expert and defer the final de133. In re Payment of Court-Appointed Expert Witness, 59 Compo Gen. 313 

(1980) (expert appraisal of property to be forfeited in a criminal case; same rule 

applies to land condemnation proceedings). In the event of a dispute over payment, the district court may order the Department of Justice to make immediate 

payment pending resolution of the dispute. Id. at 314 (court issued order for immediate payment after the Administrative Office and the Justice Department disagreed about payment). 

134. Fed. R. Evid. 706(b). By statute, payments to court-appointed experts are 

taxable as costs to the losing party. 28 U.S.c. § 1920(6) (1988). Cf. Miller V. 

Cudahy, 656 F. Supp. 316 (D. Kan. 1987), affd in part and rev'd in part, 858 F.2d 

1449 (10th Cir. 1988), cat. denied, 492 U.s. 926 (1989) (costs of what the district 

court had incorrectly characterized as a court-appointed expert could not be 

taxed, beyond the statutory allowance, to the party ordered by the court to use 

the expert); Hart v. Community Sch. Bd., 383 F. Supp. 699, 767 (E.D.N.Y. 1974) 

(fee of special master appointed pursuant to Rule 53, Fed. R. Civ. P., to assist with 

post-trial enforcement of a desegregation decree can be assessed against the defendant when the appointment is made). 

135. Rule 706(b) states that court-appointed experts "are entitled to reasonable 

compensation in whatever sum the court may allow." This language puts to rest 

the issue of whether a court-appointed expert witness is relegated to the relatively small per diem fees allowed for the parties' witnesses, expert or not. 28 

U.S.c. § 1821 (1988). See also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 

437 (1987), where the court, in dictum, stated that the statutory fee limit for the 

parties' witnesses does not apply to compensation for court-appointed expert 

witnesses. 

Compensation of Court-Appointed Experts 59 
cision on costs assessment until the outcome of the litigation is known.136 

Such an order is intended to limit the possibility of a deferred payment's 

biasing an expert's testimony in favor of (or against) the party with the 

greatest ability to pay.137 The court may allocate the fees among the 

parties as it finds appropriate both as an interim measure and in the final 

award. One court has held that the "plain language of Rule 706(b) ... 

permits a district court to order one farty or both to advance fees and 

expenses for experts that it appoints." 38 In brief, the court has discretion 

to order a single party to pre-pay the full cost of the appointment. 139 

136. Rule 706 provides that "compensation shall be ... charged in like manner 

as other costs." See also United States v. Articles ... Provimi, 425 F. Supp. 514 

(D.N.J. 1977) (assessing one-half of the costs of the expert's services, "with further 

decision on the expert's costs to abide the event"). Cf. Baker Indus. v. Cerberus, 

Ltd., 570 F. Supp. 1237, 1248 (D.N.J. 1983) (85% of costs were assessed against 

defendant and 15% against plaintiff who prevailed on almost all issues). 

137. Disciplinary Rule 7-109(0 of the American Bar Association's Model Code 

of Professional Responsibility prohibits a contingent fee for expert witnesses, 

presumably on the grounds that it may influence the witness to favor the party 

best able to pay. The rule has been upheld against a challenge that it unconstitutionally limited access to the courts. Person v. New York City Bar Ass'n, 

554 F.2d 534 (2d Cid, cert. denied, 434 U.s. 924 (1977). Rule 3.4(b), comment 3 of 

the ABA Model Rules of Professional Conduct continues the same prohibition by 

interpreting such a fee to be an "inducement" to testify falsely. At least one jurisdiction has decided to permit contingent fees for expert witnesses as long as 

the fee is not a percentage of the recovery. See also District of Columbia Court of 

Appeals, Rules of Professional Conduct, Rule 3.4, cmt. 8 (1990) ("A fee for the 

service of a witness who will be proffered as an expert may be made contingent 

on the outcome of the litigation; provided, however, that the fee, while conditioned on recovery, shall not be a percentage of the recovery."). 

Note that an appointment in a case with an indigent party in which the expert 

is to be compensated by the losing party, in effect, may make the expert's fee 

contingent on the success of the indigent party. The Manual for Complex 

Litigation suggests that judges should be wary of making such appointments 

under Rule 706. Manual for Complex Litigation, Second § 21.51 n.162 (1985) 

("The judge should be wary of making an appointment under Fed. R. Evid. 706 if, 

in effect, the expert will be on a contingent fee basis."). See also Note, Contingent 

Fees for Expert Witnesses in Civil Litigation, 86 Yale L.J. 1680 (1977). 

138. United States Marshals Servo V. Means, 741 F.2d 1053, 1058 (8th Cir. 1984) 

(en banc); see also Webster V. Sowders, 846 F.2d 1032, 1039 (6th Cir. 1988) 

(allocation of Rule 706 costs, at least temporarily, to the party against whom a 

preliminary injunction is granted is permitted when the parties obtaining the relief were impecunious). Cf. Cagle v. Cox, 87 F.R.D. 467, 471 (E.D. Va. 1980) 

(advance authorization for payment for experts is not permitted, but taxation of 

plaintiffs' expert witness fees as costs is allowed to improve access of indigents to 

60 Court-Appointed Experts 
At the conclusion of the litigation, Rule 706 also provides that the expert's "compensation ... shall be charged in like manner as costS.,,140 

This means that "costs shall be allowed as of course to the prevailing 

party unless the court otherwise directs.,,141 Courts sometimes have 

apportioned fees among the parties, in some cases simply splitting the 

costs equally142 and in other cases basing the apportionment on the 

outcome of the litigation.143 Of course, if the parties settle short of a 

resolution of the merits of the dispute, allocation of the expert's fees may 

be part of such a settlement agreement. 

Most judges require the parties to split the expert's fee, with the party 

prevailing at trial being reimbursed for its portion. Often the parties arrive at this arrangement without judicial involvement. In other instances, 

especially those in which the parties are reluctant to endorse the court's 

appointment of an expert, the judge may issue an order that requires the 

parties to pay a fixed amount to cover the expert's fees. In several cases 

in which an appointed expert served for a lengthy period, the court required the parties to make periodic payments into an account from 

which the court then compensated the expert. Judicial participation in 

the payment process varied greatly. Some judges permitted the expert to 

bill the parties directly; other judges had the expert submit the bill directly to the judge with copies to the parties and required the parties to 

pay a proportional amount unless they objected to the bill. 

Obtaining payment for the expert from the parties proved to be troublesome in several instances. As one judge noted, "It [is] a bitter pill for 

the disadvantaged party to have to pay for harmful testimony.,,144 

court); Maldonado v. Parasole, 66 FRO. 388, 390 (E.ON.Y. 1975) (indigency is a 

proper consideration in taxation of costs pursuant to Fed. R. Civ. P. 54(d». 

139. McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991). 

140. Fed. R. Evid. 706(b). 

141. Fed. R. Civ. P. 54(d). 

142. See United States v. Michigan, 680 F. Supp. 928, 956-57 (W.O. Mich. 1987); 

Unique Concepts Inc. v. Brown, 659 F. Supp. 1008,1011 (S.O.N.Y. 1987). 

143. See, e.g., Matter of Fleshman, 82 B.R. at 996 (Bankr. W.O. Mo. 1987) (court 

stated that parties would have to pay for an appraiser's services "according to a 

ratio determined by comparing the final outcome to their initial contentions"); cf. 

Baker Indus., 570 F. Supp. at 1248 (O.N.J. 1983) (assessment of 85% of special 

master costs against defendant and 15% against plaintiff who prevailed on 

almost all issues was approved). 

144. Several judges mentioned that they suspected that the prospect of the 

losing party reimbursing the winning party for the additional amount of the expert's fee encouraged settlement, but this topic was not developed in the interviews. 

Compensation of Court-Appointed Experts 61 
Occasionally one of the parties would simply refuse to pay. Then the 

judge generally held a hearing and, when necessary, demanded that the 

payment be made. In several instances the court had to impose injunctive 

relief as a means of ensuring that the payment was made. In discussing 

these instances the judges repeatedly indicated their great uneasiness at 

the prospect of incurring the services of an expert and then being unable 

to pay for those services in a timely manner. Concerns about securing 

payment moved several judges to employ a court-appointed expert only 

with the consent of the parties. 

Compensation of Appointed Experts When One Party 

Is Indigent 

As a practical matter, the indigent status of one or more of the parties 

restricts the ability of a court to allocate the expense of the expert among 

the parties. The court has the authority to order the nonindigent party to 

advance the entire cost of the expert.145 However, the judges indicated a 

great reluctance to employ such experts when the expense cannot be 

shared. We asked a number of the judges, including those who had not 

appointed experts, what they would do if one of the parties was indigent. 

Often they responded that they would proceed with the evidence at 

hand and decide the case to the best of their abilities, since forcing one 

party to bear the full expense of the court-appointed expert was a step 

they were unwilling to take. 

We found six instances in which a judge appointed an expert when 

one or more of the parties were indigent. In each case, the indigent status 

of the party limited the extent to which the party could present expert 

testimony, limited the effectiveness of the adversarial examination of the 

opponent's contentions, and raised concerns that the judge sought to address by appointment of an expert. Three of these cases involved prisoners proceeding pro se and challenging the conditions of their incarceration. In each circumstance there was reason to believe that there was 

merit in the prisoner's complaint,146 and the court appointed an expert 

145. United States Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th Cir. 1984) 

(en bane); McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991) (district court has 

discretion to appoint an expert witness in a case involving an indigent litigant 

and require the opposing party to compensate the witness). 

146. In one case an inmate charged that he received inadequate care for a 

broken bone treated by a prison doctor. The state offered the doctor's testimony 

and the plaintiff offered no expert testimony. The court appointed an expert who 

confirmed that the medical care the vrisoner received did not meet the standards 

of the profession. In a second case, prisoners claimed that inadequate facility 

staffing led to unsafe conditions. The court-appointed expert testified on the 

62 Court-Appointed Experts 
with the expectation that the expert would be compensated by the state. 

Experts were appointed in two other cases, but in both cases alternative 

authority for agpointing an expert and imposing costs on the defendants 

were utilized.1 

The most difficult circumstance identified concerned the appointment 

at an expert in a suit by an indigent family contending that exposure to 

toxic chemicals caused a number of physical injuries as well as emotional 

harm. The indigent status of the plaintiffs limited the amount of expert 

testimony they offered. The judge doubted the integrity of the defendants' expert testimony and appointed an expert to testify about whether 

the chemicals had carcinogenic properties. The judge indicated that the 

presence of children as plaintiffs in the case caused him to be especially 

reluctant to decide the case without additional expert testimony, since 

the children as well as the parents would be barred by an adverse judgment from raising future claims. In this case, much of the difficulty was 

avoided when the defendant agreed to pay the expense of the court-appointed expert. 

conditions of incarceration and compared them to conditions in similar institutions. Although the judge made an effort to allocate the expense fairly among the 

parties, he expressed considerable doubt that the prisoners would pay and appeared willing to impose the entire expense on the state if this should be necessary. In a third case, an expert was appointed to aid the court in deciding a motion for contempt against a state based on violation of an earlier order to reduce 

prison overcrowding. Again, the expert testified on the conditions of incarceration. In each of these cases the fact that the defendant was the state and that some 

preliminary investigation revealed the complaint to be of merit appeared to 

weigh heavily in the court's decision to appoint the expert and impose the costs 

on the defendant. A preliminary inquiry would seem to be appropriate to avoid 

the concerns expressed in the Manual for Complex Litigation, supra note 137. 

147. In one case, an indigent pro se party resisted attending a deposition, 

claiming an inability to participate due to a medical condition and presenting a 

letter from a personal physician. The deposing party objected and the court, at 

the deposing party's request, appointed an independent medical expert and assessed costs against the deposing party. The expert confirmed the validity of the 

excuse. Despite the fact that the appointment was made at the suggestion of the 

deposing party, that party then resisted payment for some time. In a second instance an indigent criminal defendant charged with fraud claimed that she did 

not sign certain checks that were introduced as evidence. Since the federal prosecutor did not plan to present expert testimony on this topic, the court appointed 

an expert in handwriting analysis and assessed the expense to the Department of 

Justice. This expense was then paid under the statutory authority to provide expert assistance for indigent defendants in a criminal proceeding trial under the 

Criminal Justice Act. 18 U.s.c. § 3006A(e) (1988). 

Compensation of Court-Appointed Experts 63 
64 

These few instances suggest the difficulties that may be encountered 

when added expert assistance is required and one or more of the parties 

are indigent. Although Rule 706 supports the imposition of the expenses 

on the non indigent party,148 judges seem willing to impose one-sided 

expenses only when the indigent party's claim shows some merit, or 

when the nonindigent party has agreed to assume the cost of the expert. 

The difficulties in providing payment in such circumstances suggest that 

the few instances recounted above may be far overshadowed by instances in which no appointment was made because of an inability to 

find a means of fairly compensating an appointed expert.149 

Compensation of Technical Advisors 

Finally, it also proves difficult to compensate an expert appointed as a 

"technical advisor" who may confer in private with the judge and who is 

not expected to offer testimony. Through our interviews we identified 

several instances in which a Rule 706 expert advised the court on the interpretation of evidence submitted by the parties rather than present evidence as a witness. Payment in these circumstances was simplified by 

the fact that the parties apparently consented to the appointment and 

agreed to share the cost of the expert. However, in a limited number of 

circumstances the Administrative Office of the U.S. Courts has been willing to assume the costs of such services. The Administrative Office has 

denied requests for such services where appointment of such an expert 

would be appropriate under Rule 706 of the Federal Rules of Evidence or 

under Rule 53 of the Federal Rules of Civil Procedure. Securing compensation for a court-appointed expert remains an impediment to the full 

utilization of Rule 706. 

In Reilly v. United States,1S0 the Court of Appeals for the First Circuit 

addressed the district court's use of a technical advisor and payment of 

the technical advisor's fees and expenses by the Administrative Office. 

Citing statutory authority that permits the judiciary to employ consultants and experts,lSI the district judge petitioned the Director of the 

Administrative Office for permission to appoint and compensate a tech148. See supra note 136. 

149. David Medine, The Constitutional Right to Expert Assistance for Indigents in 

Civil Cases, 41 Hast. L.J. 281, 298 (1990) ("court appointment of expert witnesses 

[under Fed. R. Evid 706] does not provide adequate assistance to indigent civil 

litigants"). 

150. 682 F. Supp. 150 (D.R.I.), atfd in part, 863 F.2d 149 (1st Cir. 1988). 

151. 5 US.c. § 3109 (1988) and 28 US_c. § 602(c) (1988)_ 

Court-Appointed Experts 
nical advisor. 152 The judge expressly disavowed appointment under 

authority of Rule 706 since he wished to employ the expert to advise him 

in chambers regarding interpretation of evidence presented at trial, and 

not to present additional evidence or testimony. Permission to appoint 

the technical expert was granted and the expert was compensated from 

the funds appropriated to the judiciary. We are aware of only one other 

instance in which the Administrative Office has agreed to pay the expenses of a technical advisor. 153 In both of these instances the payment 

was at the behest of a plaintiff who suffered childhood injuries. In one 

case, the proceedings were nonadversarial; in the other, the presentation 

on a highly technical issue was one-sided.154 It seems that this form of 

payment is available only in very unusual circumstances in which the 

expert is to provide technical assistance to the judge rather than to present evidence to the court, and in which the Director of the 

Administrative Office has approved such an expenditure prior to the appointment. 

152. Reilly, 682 F. Supp. at 152-55. The court also secured the permission of the 

Chief Judge of the First Circuit Court of Appeals and the Circuit Council. The 

court of appeals did not address which of these permissions would be necessary 

in order to appoint a technical expert. Reilly, 863 F.2d at 154 n.2. 

153. Letter from L. Ralph Mecham, Director, Administrative Office of the 

United States Courts, to Gary J. Golkiewicz, Chief Special Master, United States 

Claims Court (October 10, 1989) (on file with author) (approving a request to hire 

an economic expert to assist a special master in a case brought under the National 

Vaccine Injury Compensation Program). No similar authority exists for 

appointment of a technical advisor to serve the court of appeals. See E. I. du Pont 

de Nemours and Co. v. Collins, 432 U.S. 46,57 (1977). 

154. In the words of the court of appeals, the case "involved esoterica: complex 

economic theories, convoluted by their nature, fraught with puzzlement in their 

application." Reilly v. United States,863 F.2d 149, 157 (1st Cir. 1988). 

Compensation of Court-Appointed Experts 65 

Chapter 6 

Alternatives to Appointment of Experts 

As we have seen, court-appointed experts are rarely used, being limited 

to unusual cases involving the convergence of several special circumstances. Before we offer suggestions for improving the use of court-appointed experts, it is useful to recognize some of the alternative approaches that judges consider, implicitly or explicitly, in deciding 

whether or not to take the unusual step of appointing an expert. We concluded in Chapter 2 that judges generally appoint experts only if the evidence is unusually dense and technical and is unlikely to be illuminated 

by the parties either because of a failure of advocacy or a direct conflict 

between credible experts. ISS The issue for this chapter is "How do judges 

who have never appointed experts deal with the special circumstances of 

conflicting or inadequate expert testimony relating to extraordinarily 

technical issues?" 

To address this question, we interviewed by telephone twenty-one 

judges who, according to our survey, had never appointed an expert under Rule 706.156 We asked them whether they had faced any of three 

circumstances that might lead to an appointment, namely 0) a suggestion from a party that an expert be appointed, (2) an awareness prior to 

trial that the parties' experts would take diametrically opposed positions 

on a complex technical issue, or (3) failure of one party, due to indigence 

155. We also found that judges who appoint experts tend to support the 

adversarial system and carve out exceptions for court appointments only by obtaining the consent of the parties or by relying on the courts' traditional parens patriae to protect the interests of minors or wards of the state. Finally, we found that 

judges tend to appoint experts only when able to overcome practical problems in 

locating and compensating an expert. 

156. For this portion of the study, we selected from judges who had written 

substantial comments on the survey form. Generally, we looked for a crosssection of judges whose comments indicated that they had considered appointing 

an expert as well as judges whose comments indicated principled objections to 

the concept. While we do not contend that the views expressed by judges who 

volunteered such comments are representative of all judges who have not appointed experts, we hope that by speaking with those judges we were able to obtain a better understanding of the range of concerns judges experience when confronting circumstances that would suggest the use of a court-appointed expert. 

We expected judges who volunteered comments on the survey to be more forthcoming in discussing why they chose not to appoint an expert. 

67 
or incompetence, to present opposing evidence on a complex technical 

issue. 

The judges confirmed that parties rarely suggest appointment of an 

expert.157 Parties may, however, suggest alternatives to court-appointed 

experts once the judge raises the possibility of an appointment. Similarly, 

while many judges reported experience with cases involving a failure of 

advocacy,158 none would intervene in those situations to appoint an 

expert.159 

In cases in which judges considered but rejected the appointment of 

an expert, we were able to gain a glimpse of their approach to managing 

conflicting expert testimony. Their general comments suggest that these 

judges, like most of the judges who had appointed experts, 160 struggle to 

balance the goal of accurate, fair decision making with a system in which 

control of the presentation of information is generally vested in the 

adversaries. As one judge summarized the dilemma, "one has to balance 

the question of going outside the record [as developed by the parties] ... 

with the ultimate interest of reaching the right result." 

Just as judges who appointed experts typically had at least the parties' 

acquiescence,161 judges who rejected the idea appeared to give careful 

consideration to the parties' wishes. One judge remarked that when the 

issue of appointing an expert was raised, "the parties objected to the interference ... in the presentation of their cases." Instead, the judge used 

less intrusive alternatives to aid the jury and minimize confusion. 

Similarly, when a judge raised the issue of a court-appointed expert in 

the context of a bench trial, the lawyers were "very reluctant and preferred a tutorial approach" by the parties' experts, and the judge acquiesced. 

In addition to the above examples, a number of judges considered and 

rejected the idea of a court appointment because of an inability to over157. This concurs with the finding from our interviews with judges who had 

appointed experts: judges almost always suggested the appointment. See 

discussion at notes 47 and 48 and related text. 

158. In our interviews with judges who had appointed experts, we found that 

in about one-third of the cases the actual or anticipated failure of the advocates to 

present evidence on a technical issue was a factor in the judges' decisions to 

appoint experts. See discussion at note 22 and related text. 

159. One judge indicated that he would try to appoint a volunteer attorney in 

pro se cases and depend on the attorney to search for an expert willing to testify 

without compensation. 

160. See discussion at note 49 and related text (relating to lack of party opposition to the appointment of an expert and the prevalence of consent). 

161. Id. 

68 Court-Appointed Experts 
come some of the practical difficulties noted earlier. 162 Some judges encountered vigorous objections, often on the issue of cost, from the 

lawyers and parties. Other judges found it difficult to identify and secure 

the cooperation of a neutral expert. In these instances it is likely that an 

expert would have been appointed if a solution to these practical 

difficulties could have been found. 

Judicial Screening of Experts' Testimony Before Trial 

Several judges who had never appointed an expert reported having a 

standard procedure for addressing problems concerning expert testimony and questioned whether a court-appointed expert is ever needed. 

One judge has found that "raising the issue [at a Rule 16 conference] has 

a salutary effect on the lawyers and they either settle the case or tone 

down the position of their expert." This same judge indicates that, in his 

relatively small community, he will generally know the experts in a 

given field. Even if a party's expert is not known, the lawyers know that 

the judge will "examine the expert dosely and try to detect any fraud." 

In addition, if an expert testifies to an absurd position, the judge sometimes indicates his disbelief to the lawyers and even instructs the jury 

that they can disregard all of the testimony of the expert if they do not 

find it credible.163 

Another judge has a standard pretrial order in patent cases in which 

she raises the issue of whether a court-appointed expert might be 

needed. The lead trial counsel are directed to meet at least ten days before a scheduling and planning conference to discuss, among other topics, whether "an impartial expert may be of material assistance in educating the court with respect to the technology involved in the case./I If 

counsel agree, the order directs them to "reach agreement as soon as 

practicable upon an individual who is willing to serve." The judge has 

never found it necessary to make such an appointment. 

Another judge believes that "court-appointed experts are a corruption 

of the jury system./I He has created an elaborate set of procedures to 

manage evidence in cases with various levels of complexity. At the first 

levet he exercises his discretion to apply the Frye testl64 and Rule 702 of 

162. See supra discussion of problems in Chapter 2. 

163. For a summary of the authority of a federal judge to comment on the 

credibility of witnesses, see Fleming James & Geoffrey C. Hazard, Civil 

Procedure 289 (2d ed. 1977) and sources cited therein. 

164. See Frye v. United States, 293 F.2d lOB, 1014 (D.C. Cir. 1923) (novel 

scientific principle or discovery must have "gained general acceptance in the 

particular field in which it belongs" before evidence will be admissible). The Frye 

test has undergone extensive reexamination in recent years and has been rejected, 

Alternatives to Appointment of Experts 69 
the Federal Rules of Evidence165 to assess the admissibility of proposed 

expert testimony. His standard is that an expert must both demonstrate 

expertise in a field with a body of knowledge that can be taught and 

replicated, and must have experience with the application of the 

principles in a setting that is relevant to the litigation. Thus, he might 

examine closely, and perhaps screen out, the opinions of either lab technicians, who may have little general knowledge, or theoreticians, who 

may have little experience in applying their knowledge to the problem at 

hand. At a final pretrial conference he will probe to see if there is any 

dispute about the expertise of the proposed experts. If there is, he will 

plan to have the parties conduct a preliminary examination of the proposed expert outside of the presence of the jury to determine whether the 

expert meets the Frye standards and those of Rule 702. 

In a complex case, this judge will encourage the parties to depose each 

other's experts. If there are no depositions, answers to expert interrogatories must be detailed and comprehensive enough to articulate all the 

bases for the expert's testimony. If a basis for the expert's testimony is 

not included, that expert will be precluded from testifying about that 

source of his or her opinion.l66 

In an extremely complex case, this judge has used an effective but 

costly procedure that, he cautions, should not be used routinely. His pretrial order said, in effect: /IAs to any fact that a party wants to prove, that 

party must make that fact the subject of a request for admissions. Only 

facts that are denied will be subject of trial." The result was to narrow the 

modified, and criticized by an increasing number of courts. For an overview of 

the developments and arguments regarding the Frye test, see John D. Borders, Jr., 

Fit to be Fryed: Frye v. United States and the Admissibility of Novel Scientific Evidence, 

77 Ky. L.J. 849, 858-75 (1989). The Supreme Court has agreed to review the role of 

the Frye test in relation to the Federal Rules of Evidence. See Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir. 1991), cert. granted, 113 S. Ct. 

320 (1992). 

165. Fed. R. Evid. 702 calls for a judgment about whether the "scientific, 

technical or other evidence will assist the trier of fact to understand the evidence 

or to determine a fact in issue." 

166. By limiting the expert's testimony to the content and bases identified and 

described in the report, a court can put teeth in the directive that an expert's 

report be complete. In one district, the practice is that an expert's direct testimony 

is confined by the written report. Indeed, in a bench trial, the report is the only 

direct evidence permitted; the opposing party begins cross-examination immediately after admission of the expert's written report. One judge from that district 

indicated that this practice created an incentive to produce thorough reports and 

a disincentive for the parties to "hide the ball." 

70 Court-Appointed Experts 
focus of the disputes among the experts and "to press the parties to find 

ways to present the facts clearly to the jury." 

Narrowing of Experts' Conflicts: Bench Trials 

In discussing techniques to cope with divergent expert testimony, judges 

generally differentiated between bench and jury trials. In this section we 

will discuss bench trials; in the next, jury trials. 

In bench trials, many of the judges who did not use court-appointed 

experts expressed confidence in their ability to assess the credibility of 

experts and to decide cases after taking into account conflicting expert 

evidence. Others identified alternative approaches to obtaining the information necessary for a decision. 

Almost all of the judges we interviewed acknowledged that they had 

presided over bench trials that involved a "battle of the experts" in presenting highly technical evidence.167 In general, judges hear and evaluate 

conflicting expert testimony by employing their critical faculties much as 

they would in less difficult cases. A judge'S typical elaboration of a 

response described the normal course of decision making without the aid 

of a court-appointed expert or a technical advisor: 

I listen to the experts for both sides and make my decision. I 

will often decide on the basis of credibility or on the content 

of the evidence presented. Sometimes the experts have different facts than I do and that the other expert may have. I 

have to evaluate that and come to a decision. 

As with appointing an expert, addressing the problem of conflicting 

expert testimony begins with a diagnosis of the problem. l68 For example, 

in a complex contract case, the judge learned of an impending battle of 

the experts through pretrial conferences with the lawyers. In response, 

he got into the case more deeply and reasoned with the lawyers, urging 

them to stipulate as many facts and documents as possible, which they 

did. He explained: 

I made them go through all the expense records and to pinpoint any disagreements. It turned out that most of their disagreement was on liability, not the amount of damages 

within a given category. My job ... [became] primarily a de167. The exact question was "Have you ever had a case in which you learned 

before trial that the parties had experts prepared to testify to diametrically 

opposed, extreme positions in a highly technical subject area (Le., 'battle of the 

experts')?" Of the sixteen judges who responded to the question, fifteen indicated 

that they had faced this type of situation. 

168. See supra notes 41-42 and related text. 

Alternatives to Appointment of Experts 71 
termination of liability. [At trial] I also got at the heart of 

many facts by interrupting and asking questions of witnesses. 

Another judge reported that his general practice of holding conferences within ninety days of filing the complaint enables him to learn 

about expert disputes long before trial. For this reason that judge chooses 

not to refer pretrial conferences to a magistrate judge.169 

In another case the judge expressed his need for information about the 

issues in his ruling on a motion for summary judgment, saying simply, 

"I'm confused. There must be an issue of material fact." In the course of 

trying to address the issue raised by the judge, the parties and their experts narrowed the issues and were able to settle the case. 

Appointment of a special master may be a viable alternative to appointment of an expert. 170 One judge chose this alternative on several 

occasions "to do work similar to that of a court-appointed expert." In a 

complex property dispute involving Native American tribes, the special 

master held hearings, wrote a report, and later testified at trial. In institutionallitigation, the judge appointed a special master to examine the factual basis for the state's motion to dissolve an injunction. The special 

master's evaluation of the institution uncovered clear and continuing violations and the state abandoned the dissolution effort without a hearing. The judge found two major advantages in the use of a special master. First, the master can "conduct hearings and take testimony, leading 

to a written report to the court." Second, the judge appreciated having 

169. On the other hand, routinely presiding at conferences in cases that do not 

go to trial may consume more time than is saved by the early detection of expert 

disputes. Qualitative factors, however, such as focusing on the legal issues, 

preventing fraud, or enhancing the relationship between settlement and the legal 

merits, may justify any increased investment of judicial resources at the pretrial 

stages. For a discussion of the decision about judicial intervention in the context 

of pretrial settlement activity, see D. Marie Provine, Settlement Strategies for 

Federal District Judges 8-19 (Federal Judicial Center 1986). For a description of 

differing models for using magistrate judges, see Carroll Seron, The Roles of 

Magistrates: Nine Case Studies (Federal Judicial Center 1985). 

170. Fed. R. Civ. P. 53 details the procedures that govern the appointment and 

powers of a special master. Rule 53(b) states that "reference to a master shall be 

the exception and not the rule." For further discussion of applications of Rule 53 

in modern litigation contexts, see Wayne D. Brazil, Special Masters in Complex 

Cases: Extending the Judiciary or Reshaping Adjudication?, 53 U. Chi. L. Rev. 394 

(1986); Francis A McGovern, Toward a Functional Approach for Managing Complex 

Litigation, 53 U. Chi. L. Rev. 440 (1986). 

72 Court-Appointed Experts 
"considerable case law defining the role of a special master" in contrast 

to having "very little [case law 1about court-appointed experts." 

A number of judges take advantage of the flexibility of a bench trial to 

ask questions of the experts. One judge deals with the battle of the experts "by asking a lot of questions of the expert. If I'm not satisfied, I ask 

more." That judge has "rarely seen a case in which the expert evidence 

ends up being balanced." The judge finds it effective to push the expert's 

concept to an extreme "to see how far the expert will go." The judge's 

theory is that "if they have no limits and will stretch their testimony beyond credulity, I use that information to judge credibility." This judge 

also asks about the expert's compensation. His theory is that "the more 

extreme the position, the higher the fee."171 

Another technique that may help a judge or jury detect a "hired gun" 

expert is to allow the lawyers, in appropriate cases, to cross-examine experts based on opinions expressed in other cases. One judge reports that 

such cross-examination is becoming increasingly frequent as transcripts 

become available in computer-searchable formats. Another judge focuses 

on experts' assumptions, saying: 

Parties' experts are not so bad if you know what they are doing. They generally start with the assumptions of their side 

of the litigation. Examining their assumptions is usually the 

key. An average cross-examiner can generally show the limits of the testimony and that the testimony would be different on different assumptions (e.g., economic projections on 

the assumption of disability versus ability to return to work, 

for a simple example). By challenging the premises, the 

lawyers ... [develop] some basis for deciding which expert 

to follow. 

Similarly, another judge finds that he is generally able to deal with 

conflicting expert testimony "by reading their reports carefully, rereading, and taking notes about the important points," which "usually serves 

to clarify the alleged differences." Along the same lines, another judge 

has found that "differences tend to be a matter of degree, not total disagreement." As an example, that judge referred to a products liability 

case in which one expert testified that a design change would have improved the product. The other expert testified that the product was safe 

171. The combination of a high fee with an extreme position is the key for this 

judge. The amount of the fee, by itself, does not speak directly to the issue of 

credibility. A high fee could also reflect the prestige of the expert, the effort expended to conduct original research, or the competing demands for the expert's 

time. 

Alternatives to Appointment of Experts 73 
as designed, without addressing the idea of the design change. This 

judge has "rarely had the nose-to-nose, head-to-head expert witness 

combat." Other judges expressed similar assessments of the "battle of the 

experts." 

By calling the parties' attention to their need for special background 

information, some judges have stimulated the parties to make special 

efforts to educate the judge. In what the judge described as a "tutorial 

approach," the parties' experts used the first week of trial to present "the 

evidence I needed to understand the evidence" in a bench trial that 

lasted months. In another case the judge learned in a pretrial conference 

that the issues were technical and that, without any special effort from 

the judge, "the parties were aware of the need to educate me." During 

the trial, the parties "conducted experiments in the courtroom to demonstrate their process." When one side tried five times and failed each time, 

and the other presented a Videotaped demonstration of its successful 

technique, the judge "didn't need an expert to help [him] decide which 

one worked." 

Enhancing Jury Competence 

Having identified an impending technical dispute in a jury case, a number of judges reported that they would take special measures to enhance 

the jury's ability to understand and resolve the technical issues.172 In a 

complex case, one judge narrows the focus of the disputes among the experts during pretrial. He reports that "once I learn what the disputed 

facts are, I begin to look at them like a lawyer/educator." He will "press 

the parties to find ways to present the facts clearly to the jury." For him, 

"the issue is 'How can I help the jurors understand?'" 

Another judge elaborated on a similar approach. His standard 

practice in dealing with technical evidence in a jury case is to 

• 	 "talk to the lawyers about using graphics, blowups, overheads, and 

jury notebooks"; 

172. For a discussion of innovative techniques designed to enhance the 

competence of jurors, see William W Schwarzer, Reforming Jury Trials, 1990 U. 

Chi. Legal F. 119; Leonard B. Sand & Steven Alan Reiss, A Report on Seven 

Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. 

Rev. 423 (1985); Larry Heuer & Steven D. Penrod, Increasing Jurors' Participation in 

Trials: A Field Experiment with Jury Notetaking and Question Asking, 12 Law & 

Human Behav. 231 (1988); Larry Heuer & Steven D. Penrod, Instructing Jurors: A 

Field Experiment with Written and Preliminary Instructions, 13 Law & Human 

Behav. 409 (1989). 

74 Court-Appointed Experts 
• 	 "jump in" during expert testimony "if the lawyer and expert begin 

to use jargon" and ask for an explanation of any technical term;173 

• 	 encourage the jurors to "write down any questions that they may 

have during the examination of a witness"-if a question has not 

been answered by the end of the testimony (which rarely happens), 

the judge "reads the written question, deals with any evidentiary 

objections, and presents the question to the witness"; 

• 	 use a special verdict procedure and form in a case with multiple issues-the form should be created, if possible, before trial so that the _ 

jurors can use it as a guide during trial; and 

• 	 "outline the case and the issues for the jury" before trial, giving each 

juror a copy of a "rough draft of the instructions." 

One judge permits the jury to ask questions, usually submitted in 

writing and screened by the judge. He has found the questions to have 

been "good and useful." This judge started the practice with oral questions from the jury; he now uses written questions. An advantage of 

written questions is that they allow the judge and the parties to limit 

questions to legally relevant topics and confine responses to admissible 

evidence. 

An equal number of the judges we interviewed defined their role as 

laissez-faire, permitting the parties to present their cases to the juries and 

allowing the juries to decide the issues without any special procedures. 

They said, in effect, "Let the lawyers present their cases," "Let the experts testify," and "Let the jury decide." One said that he simply 

"instructed the jury to listen to the experts and make a judgment regarding the weight of their testimony." 

How do these judges assess the advantages and disadvantages of 

their various approaches in comparison to the use of court-appointed 

experts? Mostly, as expected, they assert the advantages of their alternatives to court-appointed experts and, implicitly or explicitly, the disadvantages of the appointment of experts. One judge, who advocates the 

judge and jury questioning the expert, says that his system is "less trouble" and that it avoids wasting efforts on cases that might settle. This 

judge also would "feel a sense of inadequacy about selecting the expert" 

because "using the parties' experts to suggest other experts might not 

lead to someone impartial." That same judge raises a thought-provoking 

point: the process of persuading the expert to participate in the case 

173. He has found that "lawyers hate it, but jurors tell me that it helps." He has 

also found that lawyers now anticipate that he will intervene and they tend to ask 

the foundation questions themselves. 

Alternatives to Appointment of Experts 75 
might tend to make the judge "committed to the expert's view" and 

make it "uncomfortable to reject 'my' expert's position." We have seen 

that judge and jury almost invariably reach outcomes that are consistent 

with the advice and testimony of a court-appointed expert. 174 While we 

cannot definitively test the "commitment" thesis, the results of the cases 

indicate that such a process is possible and, indeed, plausible. When the 

relationship is one of technical advisor to a judge, the tendency to follow 

the analysis of a selected advisor may be stronger than in the case of a 

court-appointed witness. 

Many of the judges cited the primary advantage of their procedure as 

being the maintenance of the adversary system, by permitting control of 

the evidence by the parties and by permitting control over decision making by judge and jury. One judge summarized these concerns in noting 

that his laissez-faire set of procedures "maintains the adversary system 

and helps me avoid becoming an adversary." 

Underscoring the importance of maintaining party control of the presentation of evidence, one judge observed that the adversary system 

"permits the attorney to control [party] costs and control the presentation 

of information." In a case in which the judge "delved deeply" into the issues and narrowed them, he concluded that a "major advantage" of the 

procedure was the reduction of costs to the litigants. His procedure 

"used the parties' own resources as opposed to hiring an outsider." The 

judge did not explicitly factor his own time into the equation. 

Support for maintaining control over jury decision making was more 

equivocaL One judge underscored the dilemma that "leaving control of 

the case in the hands of the advocates" may mean that "the jury may not 

have the background [and information] to make a reasoned decision." As 

we have seen, however, several judges would temper the adversary system by prodding the adversaries to present jargon-free information in a 

clear and direct format to aid jury decision making. Indeed, an advantage that one judge found in not using a court-appointed expert is that 

such testimony may confuse the jury when the parties have competent 

experts. An advocate of jury enhancement devices asserts that such devices "maintain the integrity of the jury system and empower the jury to 

understand and resolve technical issues." 

Pretrial Procedures as an Alternative to Court-Appointed 

Experts 

The responses of judges who had never appointed an expert demonstrate 

that a wide range of techniques exists to enable a court to deal with com174. See discussion supra at notes 123-26. 

76 Court-Appointed Experts 
plex scientific and technical evidence. However, it is misleading to suggest that such techniques will always prove to be an adequate alternative 

to appointment of an expert. Many of the judges who appointed experts 

did so after other means of resolving the conflict, including many of the 

techniques mentioned as alternatives, were found to be inadequate. We 

asked the one-time users of the 706 process "Did you attempt other 

means of resolving the conflict before appointing the 706 expert?" The 

responses were evenly split, with nineteen of thirty-eight responding 

judges on each side of the question. However, the nature of the responses 

suggests that alternative methods of dispute resolution are used prior to 

the appointment of an expert more commonly than these figures indicate.175 

The affirmative responses revealed an assortment of methods (many 

of which were also cited by judges who had not appointed an expert). It 

was common for judges to inquire about expert testimony as part of a 

standard pretrial process. Consistent with our finding that many judges 

appoint only after it becomes clear that the cases will not settle, seven of 

the judges reported employing settlement or mediation techniques to resolve the conflicts. Two of the seven cases involved use of an outside 

mediator; in one of the cases, the mediator became the 706 expert. In addition, three of the judges explored the use of stipulations to narrow the 

dispute. Two judges urged the parties to agree on a single expert. In sum, 

twelve of the nineteen affirmative responses involved pressing for a consensual resolution of the conflict. 

Four of the judges reported activity directly related to deciding the 

merits of the dispute, testing the reality and depth of the conflicts of the 

experts. One judge did so by examining the testimony of the experts at a 

pretrial hearing to find a basis for decision; another examined the plaintiff's expert to test credibility; another examined affidavits of the experts; 

and another read the briefs and found the parties unalterably opposed. 

One judge simply "tried everything, including stipulations," but found 

that the poor quality of advocacy derailed the usual techniques. 

From these responses, we surmise that judges who appoint experts 

also use their personal pretrial case management systems to respond to 

175. Reading between the lines of some of the negative responses led us to 

. believe that some of the judges interpreted our question to ask only about extraordinary means of resolving the conflict. Some judges who said that they did 

not take other means indicated that they did have pretrial conferences at which 

they explored the issues regarding conflicting expert testimony and the prospects 

of settlement with counsel. One of the negative responses involved a case in 

which the judge spent more than forty days in a bench trial before determining 

that an outside expert was necessary in order to reach a reasoned decision. 

Alternatives to Appointment of Experts 77 
the needs of these cases. Their approaches to these problems in cases 

where experts were appointed were not unlike the approaches taken by 

judges who have not appointed experts. These judges considered appointment of an expert only when they discovered an irreconcilable 

conflict in testimony that was likely to prevent a reasoned decision on 

the merits and when they determined that the parties were unlikely to 

resolve the dispute amicably. The difference between judges who had 

appointed experts and those who had not appears to lie not in the initial 

procedures employed when a difficult conflict regarding scientific or 

technical evidence arose, but rather in the extent to which the judges 

were willing to invoke the extraordinary alternative of appointing an expert when these initial procedures failed to provide a basis for a reasoned 

solution to the conflict. 

78 Court-Appointed Experts 
Chapter 7 

Improving the Use of Court-Appointed 

Experts 

This chapter presents the judges' overall assessments of the service provided by the court-appointed experts and their suggestions for improvements in Rule 706 and related procedures. A pretrial procedure is 

described that is intended to ease the consideration of scientific and 

technical evidence. The pretrial procedure is based on early identification 

of issues likely to require expert testimony, specification of disputed issues of science and technology, and screening of expected testimony of 

parties' experts. This procedure will diminish the difficulties that arise 

when a judge determines that appointment of an expert is appropriate. 

Satisfaction with Appointed Experts and Suggestions for 

Improvements 

The judges who appointed experts were almost unanimous in expressing 

their satisfaction with the expert: all but two of the sixty-five judges indicated that they were pleased with the services provided.176 Whatever 

difficulties may have arisen as a result of the appointment, the judges indicated that the appointed experts provided a highly valued service.177 

------.----­

176. The judges were asked, "Were you satisfied with the services provided by 

the 706 expert? Would you use a 706 expert again in the same circumstances?" 

(We did not have time to pose these questions to three of the sixty-eight judges 

interviewed.) The two judges who did not indicate that they were satisfied remain open to appointing an expert in the future. One judge indicated that he had 

little basis from which to form a judgment regarding the performance of the two 

experts he appointed; one expert was called on to do little before the case settled, 

and the other testified before a visiting judge. The other judge that did not express satisfaction with the process indicated some frustration that the interactions 

with the expert had been constrained by a need to avoid direct communication 

with the expert outside the presence of the parties. He noted, "1 would use an expert again in the same circumstances, but I would do a few things differently. I 

would not use the expert unless I could discuss matters privately with the expert. 

He did not educate me on a one-ta-one basis and that was what I needed." 

177. Our question concerning satisfaction with the process elicited a great 

many testimonials to the experts who were appointed. For example: "He was 

outstanding. He was very interested in the intersection of law and medicine and 

his testimony showed an understanding of the role of an expert and the role of 

the judge. He studied the statute and knew what would be helpful to me as a 

judge"; "He gave me a very thoughtful assessment of the position of the two par79 
When asked about the need for changes, most judges indicated that 

they were satisfied with the present form of the rule. 178 Those judges who 

suggested changes focused on problems that have been discussed earlier, 

especially problems related to compensation179 and ex parte 

communication.lSoln general, the suggestions called for more guidance 

concerning the exercise of judicial discretion in these areas. These 

suggestions are reviewed in order of their frequency. 

Ten judges repeated their concern over difficulties in compensating 

the appointed expert and recommended more explicit guidance concerning allocation of costs. The need for guidance is especially great where 

one of the parties is hard pressed to make an equal contribution. The 

difficulty of imposing costs on indigent parties caused four judges to 

suggest that a separate fund be established to permit compensation of 

experts in such cases.lSl The present rule grants the judge authority to 

allocate compensation expenses under almost any plan that he or she regards as appropriate.182 Some clarification concerning the exercise of this 

authority may be beneficial. Recent cases in which the entire cost of the 

appointed expert was allocated to the nonindigent party may clarify 

some issues.183 This issue also can be explored at workshops and judicial 

conferences by using hypothetical circumstances similar to those that 

have been most troubling (e.g., indigent party opposing expert testimony 

that lacks credibility; presence of minors as parties; disputed issues of 

ties and of his reasons for agreeing with the one"; and, "Here, the individual was 

skillful and he was very aware that he was acting for the court. He bent over 

backwards to be fair to both sides." We attempted in the initial interviews to 

question the judges to determine the extent to which their satisfaction could be 

attributed to the procedure they employed or to the individual who served as the 

expert. Those who responded indicated that their satisfaction with the process 

was due to both the individual and the procedure. 

178. Judges were asked what, if any, changes would make court-appointed 

experts more useful. Multiple users were asked specifically about changes to Rule 

706. One-time users were asked about changes in general, but were encouraged 

in the interview to address changes in the rule. 

179. See supra Chapter 5. 

180. See supra notes 79-80 and related text. 

181. One judge suggested that filing fees be raised by $1 to help build a fund 

used to pay experts when the cost becomes uncollectible. See also notes 151-54 

and related text (authority of Administrative Office to authorize payment to 

consultants and experts). 

182. See supra note 134 and related text. 

183. See, e.g., McKinny v. Anderson, 924 F.2d 1500 (9th Cir. 1991) (Rule 706 

permits imposition of cost of appointed expert on nonindigent party where one 

party is unable to pay a portion of the cost). 

80 Court-Appointed Experts 
public safety). In this way the judiciary might develop a consensus regarding the circumstances that justify unequal apportionment of costs 

for an appointed expert. 

Six judges mentioned the need for more guidance concerning ex parte 

communication between the judge and the expert.184 These judges 

mentioned their frustration in avoiding ex parte communication when 

the expert was appointed to educate the judge regarding unfamiliar issues. The present form of the rule does not explicitly address such useit focuses instead on the testimonial function of such experts and reliance 

on cross-examination to guard against bias. These judges recommend 

that the rule (or perhaps the Advisory Committee notes) be amended to 

address the appropriate forms of interaction with an appointed technical 

advisor. Such a revision could define the extraordinary circumstances 

that justify ex parte communication.185 The aim would be to balance the 

felt need of some judges for technical advisors with proper deference to 

adversarial principles. For example, an amendment to the rule or notes 

could describe the circumstances that would merit such assistance, the 

extent to which the parties should be given an opportunity to confront 

facts communicated to the judge, and the procedures used to guard 

against improper delegation of judicial authority. Such an amendment 

could also address circumstances under which ex parte communication 

between the judge and the appointed expert could be undertaken only 

with the consent of the parties. 

Three judges were concerned with the difficulty in selecting a neutral, 

unbiased expert and commented on the need for greater access to candidates who are both independent and knowledgeable. One judge suggested that independent panels of experts be assembled to consider various topics of concern and report to the courts; another suggested establishing a pool of independent experts who would only serve when appointed by the courts; and one suggested that outside organizations 

should playa more active role in directing courts to competent, independent experts. The fact that judges often appoint experts with whom 

184. See supra notes 79-80 and related text. 

185. Reilly v. United States, 863 F.2d 149, 156 (1st Cir. 1988) (such appointments "should be reserved for truly extraordinary cases where the introduction 

of outside skills and expertise, not possessed by the judge, will hasten the just 

adjudication of a dispute without dislodging the delicate balance of the juristic 

role.... Appropriate instances, we suspect, will be hen's-teeth rare. The modality 

is, if not a last, a near-to-Iast resort, to be engaged only where the trial court is 

faced with problems of unusual difficulty, sophistication, and complexity, involving something well beyond the regular questions of fact and law with which 

judges must routinely grapple."). 

Improving the Use of Court-Appointed Experts 81 
they are acquainted, and that some judges reported difficulty finding experts,186 suggests that judges may welcome opportunities to consider 

experts presenting a broader range of professional expertise and opinion.187 Cooperation with organizations outside the judiciary may expand 

such opportunities.lSB 

Two judges recommended that Rule 706 attend more to the pretrial 

aspects of litigation. One of these judges suggested that Rule 706 should 

be framed within the Federal Rules of Civil Procedure rather than the 

Federal Rules of Evidence.189 Placement of such authority in the Federal 

-~----- .. ---­

186. See supra notes 52-54 and related text. Again, our study was not well 

suited to determine the extent to which the judges were thwarted in making an 

appointment by failing to identify a suitable candidate. 

187. When judges who appointed an expert on more than one occasion were 

asked how their use of court-appointed experts changed with experience, those 

who reported changes often mentioned that they did a better job of appointing 

experts. Six of the ten judges reporting changes mentioned improvements in the 

process of appointing experts. Four of these judges mentioned that they exercised 

greater care in selecting an expert, encouraged greater party participation, and 

became more actively involved in recruiting a qualified person to serve as the 

appointed expert. The other two judges mentioned that they now begin the 

appointment process earlier in the litigation. Other changes included closer 

supervision of the appointed expert's work, greater control over ex parte 

communication between parties and the appointed expert, and greater sensitivity 

to the manner in which the court's sponsorship of the appointed expert was revealed to the jury. Thirteen of the twenty-three judges responding reported no 

change in their practices despite greater experience. 

188. A recent special task force of the AAAS/ABA National Conference of 

Lawyers and Scientists, supported by the Carnegie Corporation, is exploring 

ways to increase the number of scientists and engineers who are willing to serve 

as appointed experts. See generally Enhancing the Availability of Reliable and 

Impartial Scientific and Technical Expertise to the Federal Courts: A Report to the 

Carnegie Commission on Science, Technology, and Government (AAAS/ ABA 

National Conference of Lawyers and Scientists Task Force on Science and 

Technology in the Courts), September 1991. As part of a proposed pilot project 

various scientific societies will serve as sources of expertise for judges who desire 

to make such an appointment. This project also is developing guidelines for experts assisting the courts, and exploring the possibility of assembling a panel of 

qualified experts to prepare authoritative statements on the state of the art in 

specific areas of science and technology. A greater willingness of qualified persons to serve as appOinted experts, combined with clearer instruction for judges 

concerning recruitment of experts beyond the judge's immediate circle of acquaintances, should address this concern. 

189. Only four of the sixty-five users we interviewed had appointed experts 

under Rule 706 during criminal proceedings. In criminal proceedings there is 

82 Court-Appointed Experts 
Rules of Civil Procedure would be consistent with the rules' increasing 

attention to issues relating to expert evidence and pretrial procedures,190 

and would permit integration of the rule allowing for court-appointed 

experts with the authority for appointment of special masters191 and the 

use of technical advisors. 192 Locating the authority to appoint an expert 

in the Federal Rules of Civil Procedure also would permit easy 

integration with proposed changes intended to ease the difficulties that 

arise with expert testimony.193 Timing of appointment, ex parte 

communication, and compensation of the expert may all be considered 

part of a comprehensive pretrial procedure intended to facilitate early 

identification of litigation disputes which turn on evidence that is not 

readily comprehensible, and to permit the court to select from a range of 

options depending on the degree of assistance required. 

A Pretrial Procedure to Aid in Understanding Complex 

Expert Testimony 

Even within the structure of the present rules there is opportunity to tailor procedures to permit more focused consideration of scientific and 

technical evidence. This section presents a pretrial procedure that is intended to ease the consideration of difficult scientific and technical evidence.194 This procedure is based on (1) early identification of issues 

likely to require expert testimony; (2) specification of disputed issues of 

science and technology; and (3) screening of expected testimony by parseparate statutory authority enabling appointment of an expert. See, e.g., 18 U.S.c. 

§ 3006(e) (1988). 

190. See proposed amendments to Fed. R. Civ. P. 16(c)(4) (permitting consideration of limitations or restrictions on the use of expert testimony at a pretrial 

conference) and Fed. R. Civ. P. 26(a)(2) (requiring disclosure without a discovery 

request of anticipated expert testimony, information supporting that testimony, 

and qualifications and experience of expert witness). 

191. Fed. R. Civ. P. 53. 

192. Reilly v. United States, 863 F.2d 149 (1st Cir. 1988). 

193. See infra note 198. 

194. For a similar proposal to facilitate consideration of expert evidence in 

toxic tort litigation, see Margaret A. Berger, Procedural and Evidentiary 

Mechanisms for Dealing with Experts in Toxic Tort Litigation: A Critique and 

Proposal, submitted to the Carnegie Commission on Science, Technology, and 

Government (November 1990). See also Paul C. Giannelli, Scientific Evidence: A 

Proposed Amendment to Rule 702, 115 F.R.D. 102 (1987) (proposing that the 

Federal Rules of Evidence be amended to bar expert testimony unless the proponent gives the adverse party advance written notice of the nature of the testimony). 

Improving the Use of Court-Appointed Experts 83 
ties' experts to ensure admissibility. This pretrial procedure need not 

culminate in the appointment of an expert-it includes several alternatives to such an appointment. If, however, the judge determines that appointment of an expert would be appropriate, the proposed procedure 

should aid such an appointment. 

This proposed pretrial procedure is intended for cases that turn on 

evidence that is not readily comprehensible. Furthermore, the procedure 

will be most useful to judges who wish to inquire into the nature of expert testimony and identify likely difficulties arising from the presentation of scientific and technical evidence. It is intended to permit recognition of difficulties at an early point in the litigation and allow the judge to 

narrow disputed issues by encouraging the parties and experts to specify 

their assumptions and designate areas of agreement and disagreement. If 

questions of admissibility are raised, the proposed procedure would enable the judge to conduct in limine hearings to resolve such questions 

and to enter summary judgment where disputed issues are not 

supported by admissible evidence. In those extraordinary cases in which 

the court requires the assistance of an appointed expert, the proposed 

procedure will enable an appointment in time to avoid delay in the 

litigation and difficulties in securing the effective services of an expert. 

Description of the proposed procedure is divided into (1) those pretrial 

practices that function independently of appointment of an expert and 

(2) special practices suited for such an appointment. 

Clarification of disputed issues arising from complex evidence 

Early identification of disputed expert testimony. All but the simplest 

techniques for addressing problems arising from difficult expert 

testimony require early awareness of disputed scientific and technical 

issues. Even if a judge decides to invoke none of the pretrial procedures 

intended to address issues of expert testimony, knowledge of especially 

difficult disputed issues prior to trial will enable a more informed 

consideration of such issues when they are presented. If extraordinary 

procedures are to be invoked, awareness of looming difficulties may be 

critical if the full range of pretrial devices are to be considered. One of 

the major impediments to the appointment of experts, according to our 

survey, is that judges are often unaware of a trial's difficulty until it is too 

late to make an appointment.195 

Almost all judges make some inquiry into the nature of proffered expert testimony, if only to ensure that it will assist the trier of fact as required under Rule 702 of the Federal Rules of Evidence. But judges ap195. See supra note 38 and related discussion. 

84 Court-Appointed Experts 
pear to vary greatly in the extent to which they inquire beyond this 

threshold. Some judges may, as part of a standard pretrial order, require 

disclosure of anticipated expert testimony.196 Proposed amendments to 

Rule 26(a)(2) of the Federal Rules of Civil Procedure would require such 

disclosures, as well as disclosure of the information the expert used in 

reaching the opinion.197 Encouragement for early inquiry regarding the 

nature of expert testimony also is found in recent proposed amendments 

to Rule 16(c) of the Federal Rules of Civil Procedure. These proposed 

amendments would encourage more explicit consideration of limits on 

expert testimony.198 The Manual for Complex Litigation also encourages 

early identification of difficult or complex litigation, and early intervention by the judge to ensure the efficient conduct of the litigation.199 

Early awareness of disputed issues addressed by expert testimony is a 

common goal of many standard pretrial orders. Our interviews with 

196. See, e.g., William W Schwarzer, Guidelines for Discovery, Motion Practice 

and Trial, 117 F.R.D. 273,276 (1987) ("If the expert is expected to testify at trial, a 

written statement of his anticipated testimony should be given to opposing 

counsel in advance of the deposition."). See also Litigation Management Manual, 

59-60 (Federal Judicial Center 1992). 

197. Proposed amendment to Rule 26(a)(2) of the Federal Rules of Civil 

Procedure, published for comment in August 1991, by the Committee on Rules of 

Practice and Procedure, reads: "[E]ach party shall disclose to every other party 

any evidence which the party may present at trial under rules 702, 703, or 705 of 

the Federal Rules of Evidence. This disclosure shall be in the form of a written 

report prepared and signed by the witness which includes a complete statement 

of all opinions to be expressed and the basis and reasons therefor; the data or 

other information relied upon in forming such opinions; any exhibits to be used 

as a summary of or support for such opinions; the qualifications of the witness; 

and a listing of any other cases in which the witness has testified as an expert at 

trial or in deposition within the preceding four years." 

198. Proposed amendments to Fed. R. Civ. P. 16(c)(4) suggest consideration at 

pretrial conferences of "limitations or restrictions on the use of testimony under 

Rule 702 of the Federal Rules of Evidence." The proposed amendment 16(c)(15) 

also suggests consideration of reasonable limitations on the number of witnesses 

presented, a restriction that is likely to curb expert testimony. Proposed 

amendment 26(a)(2) would require each party to disclose by means of a written 

report any expert testimony that the party may present at trial, and include a 

statement of the information relied on in arriving at the opinion. Proposed 

Amendments to the Federal Rules of Civil Procedures, Meeting of the Advisory 

Committee on Civil Rules, May 22-24, 1991. Dean Berger has suggested that Rule 

16 be amended to call for a pretrial conference in particularly demanding cases 

after completion of expert discovery that would explicitly address issues of 

expert testimony. 

199. Manual for Complex Litigation, Second § 20.1 (1985). 

Improving the Use of Court-Appointed Experts 85 
judges who appointed experts and those who did not revealed that many 

judges inquire into the nature of expert testimony as a routine matter?OO 

Attempts to na"ow disputes. Again, Rule 16 of the Federal Rules of 

Civil Procedure encourages efforts to narrow disputes during pretrial, a 

mandate that can extend to disputes between parties' experts as well as 

the parties themselves. One subject appropriate for discussion at the 

pretrial conference is "the possibility of obtaining admissions of fact and 

of documents which will avoid unnecessary proof, .. ,,,Z01 Efforts to 

narrow disputes among experts may be especially useful where 

identification of disputed issues suggests that the experts' testimony will 

be in direct and complete opposition. Interviews with judges revealed 

that early indications of complete and thorough disagreement between 

experts often foreshadowed greater difficulties at trial. 

A variety of devices can be used to explore the differences among experts, determine the extent of their disagreement, and clarify issues that 

underlie the dispute. Identifying the differences in assumptions that 

drive the more general disagreements will permit the trier of fact to try to 

resolve these assumptive differences rather than attempt to sort through 

the consequences of such disagreements. Some judges approach this task 

by asking experts to stipulate to those issues on which they agree and 

disagree, much like the factual stipulations that parties are often asked to 

provide.zoz Or the parties may be asked to submit a joint report, setting 

forth areas of agreement and disagreement.z03 Some judges present the 

parties with a list of issues that they should respond to in preparing such 

a report.Z04 With especially demanding expert testimony, some judges 

convene a joint conference with counsel and the key experts, and engage 

200. See supra Chapters 2 and 6. 

201. Fed. R. Civ. P. 16(c)(3). 

202. Fed. R. Civ. P. 36(a). 

203. Margaret A. Berger, Procedural and Evidentiary Mechanisms for Dealing 

with Experts in Toxic Tort Litigation: A Critique and Proposal 53, submitted to 

the Carnegie Commission onScience, Technology, and Government (November 

1990). See also Litigation Management Manual, 60 (Federal Judicial Center 1992). 

204. See, e.g., The Evolving Role of Statistical Assessments as Evidence in the 

Courts, at Appendix II: Recommended Standards on Disclosure of Procedures 

Used for Statistical Studies to Collect Data Submitted as Evidence in Legal Cases, 

in Appendix F: Recommendations on Pretrial Proceedings in Cases with 

Voluminous Data (Stephen E. Fienberg ed., 1988) (protocol for statistical experts 

prepared by the Special Committee on Empirical Data in Legal Decision Making 

of the Association of the Bar of the City of New York). 

86 Court-Appointed Experts 
in a formal or informal colloquy concerning the differences between the 

experts.205 

Screening of expert testimony. Identifying and narrowing disputed issues may lead to doubts concerning the admissibility of some of the proffered expert testimony. Questions may arise concerning the 

qualifications of those likely to be called as experts, or the accuracy of the 

information on which the experts base their testimony.206 In such cases 

the judge may wish to conduct a separate pretrial hearing to determine 

the admissibility of proposed expert testimony.207 Such a hearing may 

dispose of questionable testimony, thereby providing the parties with a 

better understanding of the evidence to be presented at tria1.208 If the 

court finds that there is no admissible evidence to support essential ele205. Jack B. Weinstein, Role of Expert Testimony and Novel Scientific Evidence 

in Proof of Causation, Presentation at ABA Annual Meeting, Managing Mass 

Torts, San Francisco, Cal., August 9,1987, at 22 (describing an occasional practice 

of swearing in all the experts, seating them at the table together with counsel and 

engaging them in recorded colloquy under court direction). Other techniques for 

clarifying and narrowing issues are found in the Manual for Complex Litigation, 

Second § 21.33 (1985). 

206. The various ways that expert testimony can fall short of the standards of 

admissibility are discussed in Margaret A. Berger, Procedural and Evidentiary 

Mechanisms for Dealing with Experts in Toxic Tort Litigation: A Critique and 

Proposal, submitted to the Carnegie Commission on Science, Technology, and 

Government 11-34 (November 1990). 

207. The screening of expert testimony to determine its admissibility is authorized by Rules 104, 702, and 703 of the Federal Rules of Evidence. Compare 

Christophersen v. Allied-Signel Corp., 939 F.2d 1106 (5th Cir. 1991) (per curiam, 

en banc) (affirming summary judgment for defendants following exclusion of 

expert testimony found to be untrustworthy) with In re Paoli R.R. Yard PCB Litig., 

916 F.2d 829 (3d Cir. 1990) (reversing summary judgment for the defendant and 

remanding for clarification of basis of exclusion of testimony by plaintiffs' 

expert). 

208. See generally Johnny K. Richardson, Use of Motions In Limine i'1 Civil 

Proceedings, 45 Mo. L. Rev. 130 (1980); Stephen A. Saltzburg, Tactics of the Motion 

In Limine, 9 Litig. 17 (1983). The arguments for and against motions in limine are 

set forth in 21 Charles A. Wright & Kenneth W. Graham, Federal Practice and 

Procedure § 5037, at 193-96. See also Jack B. Weinstein, Role of Expert Testimony 

and Novel Scientific Evidence in Proof of Causation, Presentation at ABA Annual 

Meeting, Managing Mass Torts, San Francisco, Cal., August 9, 1987, at 21 

("Pretrial (in limine) rulings on conditions for admission of evidence are increasingly being utilized. They are useful because they give parties directions."). 

Improving the Use of Court-Appointed Experts 87 
ments of a claim, the court may dispose of the action by summary judgment.209 

Courts vary greatly in the extent to which they will inquire into the 

basis of expert testimony and exclude testimony that appears untrustworthy. Some have identified an emerging trend toward a close examination of the basis of expert testimony and the exclusion of testimony 

that is seen as too unreliable.210 The widening gulf between those who 

would permit close scrutiny of the basis for experts' testimony211 and 

those who favor less demanding screening212 has created considerable 

uncertainty regarding the manner in which expert testimony is to be 

evaluated by the court. 

Appointment of an Expert 

When a pretrial procedure based on the above elements fails to reveal information necessary to permit a reasoned resolution of the disputed issues, a judge may wish to appoint an expert. Our interviews suggested 

that such cases will be infrequent and will be characterized by evidence 

that is particularly difficult to comprehend, credible experts who find little basis for agreement, and a profound failure of the adversarial system 

to provide the information necessary to sort through the conflicting 

claims and interpretations. Judges who had appointed experts emphasized the extraordinary nature of such a procedure and showed no willingness to abandon the adversarial process before it had failed to provide 

the information necessary to understand the issues and resolve the dispute. 

Cases involving unrepresented or poorly represented parties, another 

unusual circumstance, may also merit appointment of an expert. When 

one or more of the parties are unable to or choose not to present expert 

testimony, a court may be uneasy resolving the issue on the basis of ex209. Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986); In re "Agent Orange" Prod. 

Liab. Litig., 611 F. Supp. 1223 (E.DN.Y. 1985), affd on other grounds, 818 F.2d 187 

(2d Cir. 1987). 

210. Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic 

Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. 

L. Rev. 643 (1992); Edward Brunet, The Use and Misuse of Expert Testimony in 

Summary Judgment, 22 U.c. Davis L. Rev. 93 (1988). 

211. This trend is noted primarily in product liability and toxic tort litigation. 

See, e.g., Brock v. Merrell Dow Pharmaceutical, Inc., 874 F.2d 307 (5th Cir.), 

modified, 884 F.2d 166 (5th Cir. 1989); Christophersen v. Allied-Signel Corp., 939 

F.2d 1106 (5th Cir. 1991) (per curiam, en bane); Richardson v. Richardson-Merrill 

Inc., 857 F.2d 823 (D.C. Cir. 1988). 

212. See Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (1Ith Cir. 1986); 

Ferebee v. Chevron Chern. Co., 736 F.2d 1529 (D.C. Cir. 1984). 

88 Court-Appointed Experts 
pert testimony provided by a single party. If the court doubts the credibility or competence of the testifying experts, it may have to choose between appointing an expert and proceeding without competent and 

credible testimony on a critical issue. 

Several judges, in describing the issues that caused them to consider 

an appointment, mentioned the interests of minors or a public interest 

that was not adequately represented. In such cases the importance of 

reaching a correct resolution of disputed evidentiary issues may be especially great, and appointing an expert may be the most practical means of 

obtaining information. The pretrial procedure outlined above should ensure that every effort has been made to obtain the necessary information 

short of appointing an expert. 

Where appointment of an expert appears to be the only means of obtaining necessary information, the proposed pretrial procedure also provides an early indication of the problem, permitting the appointment to 

be undertaken in a timely manner without disrupting or postponing the 

anticipated trial. The proposed procedure also will develop material that 

will aid in instruction of the appointed expert. While we do not advocate 

appointment of an expert to encourage settlement, early awareness by 

the parties that such an appointment is being considered will permit 

them to engage in settlement negotiations with an awareness of that 

prospect. 

Appointing an expert increases the burden on the judge, increases the 

expense to the parties, and raises unique problems concerning the presentation of evidence. These added costs will be worth enduring only if 

the information provided by the expert is critical to the resolution of the 

disputed issues. The proposed pretrial procedure is intended to identify 

cases that can be resolved in an expeditious manner without appointing 

an expert, as well as cases that require such assistance. 

Initiation of the appointment. The interviews suggest that the appointment process will have to be initiated by the judge; rarely do the 

parties raise this possibility on their own. Again, the proposed pretrial 

procedure is intended to inform the judge of the nature of the underlying 

evidentiary disputes so that the judge is less reliant on the parties to inform the court of such disputes. The court can initiate this process on its 

own by entering an order to show cause why an expert witness or witnesses should not be appointed.213 

In responding to the order, parties should address a number of issues 

that may prove troublesome as the appointment process proceeds. 

Parties should be asked to nominate candidates for the appointment and 

213. Fed. R. Evid. 706(a}. 

Improving the Use of Court-Appointed Experts 89 
give guidance concerning characteristics of suitable candidates. Those 

judges who encouraged both parties to create a list of candidates and 

permitted the parties to strike nominees from each other's list found this 

to be a usefuJ method for increasing party involvement and developing a 

list of acceptable candidates. 

Greater party involvement in identifying suitable candidates diminishes the judge's reliance on friends and colleagues for a recommendation. When parties fail to recommend a suitable candidate, the judge may 

find it difficult to identify a candidate who is both knowledgeable in the 

. relevant specialities and disinterested with respect to the outcome of the 

litigation. Academic departments and professional organizations may be 

a source of such expertise. 

Compensation of the expert also should be discussed with the parties 

during initial communications concerning the appointment. Unless the 

expert is to testify in a criminal case or a land condemnation case, the 

judge should inform the parties that they must compensate the appointed expert for his or her services.214 Typically each party pays half of 

the expense, with the prevailing party being reimbursed by the losing 

party at the conclusion of the litigation. Raising this issue at the outset 

will indicate that the court seriously intends to pursue an appointment, 

and may help avoid subsequent objections to compensation. If difficulty 

in securing compensation is anticipated, the parties may be ordered to 

contribute a portion of the expected expense to an escrow account prior 

to the selection of the expert. Objections to payment should be less likely 

to impede the work of the expert once the appointment is made. 

Finally, the court should make clear in its initial communications the 

anticipated procedure for interaction with the expert. The assistance 

sought by the court and the anticipated manner of interaction can be described. If ex parte communication between the court and the expert is 

expected, the court should outline the specific nature of such communications, the extent to which the parties will be informed of the content of 

such communications, and the parties' opportunities to respond. Each of 

these issues is discussed in greater detail below. This initial communication may be the best opportunity to raise such considerations, entertain 

objections, and inform the parties of the court's expectations of the practices to be followed regarding the appointed expert. 

214. If the appointed expert is to serve as a technical advisor, the judge may 

wish to seek permission of the Administrative Office to compensate the expert as 

a consultant to the judiciary. Such compensation is likely to be approved only in 

highly unusual cases. 

90 Court-Appointed Experts 
Communicating with the appointed expert. Conversations with 

judges revealed that communications with experts is one of the most 

troubling areas when dealing with court-appointed experts. Several 

judges mentioned the need for guidance regarding ex parte communications with experts. Complete avoidance of ex parte communication 

seems impractical in light of the judge's obligation to contact the expert, 

explain the general nature of the task, and determine the expert's willingness to undertake the assignment. While an initial letter inviting participation may be drafted with the assistance of the parties, there are 

likely to be telephone inquiries and other incidental communications 

(e.g., concerning time of hearing, details of compensation) in which full 

participation by the parties is unnecessary. 

Once the expert has agreed to serve and seeks more specific information regarding the nature of the task, concerns over communications between the judge and experts outside the presence of the parties become 

more acute. Participation of the parties in the instruction of the expert offers an early opportunity to ease such concerns and ensure that the parties are fully aware of the services being sought of the expert. Since appointment of an expert is a rare event, the parties and the expert are 

likely to require clear guidance regarding the expectations of the court. 

A common practice is to instruct the expert at a conference with the 

parties present, then formalize the instructions with a written order filed 

with the clerk. This practice permits easy interaction with the expert at 

the initial conference, ensures that the parties and the expert understand 

the nature of the task, and avoids misunderstanding and disagreements 

over the initial instructions. The instructions themselves can be based on 

the materials prepared by the parties as part of the pretrial process, 

which should set forth areas of disagreement and confusion. A written 

order also will help the expert focus his or her inquiry and will serve as a 

reminder of the limitations of the expert's role in relation to the judge's. 

If an appOinted expert has questions regarding his or her duties, the 

parties should be informed of the nature of the inquiry.215 In most cases 

this should pose no difficulty. A written request for clarification from the 

expert and a written response by the court, with copies to all interested 

parties, will permit parties to remain informed of the proceedings and 

offer objections or clarifications to the response. If the judge and the 

expert expect to confer in person, several options are available. 

Representatives of the parties can be invited to attend the conference or, 

215. There may be questions concerning non-substantive issues, such as the 

timing of a report or hearing, or conditions of compensation, that do not require 

the participation of the parties. 

Improving the Use of Court-Appointed Experts 91 
if this proves impractical, a record of the discussion can be forwarded to 

the parties. In any event, we believe that parties should be informed of 

communications between the expert and the judge, and be informed of 

the nature of those communications. This will permit a party to challenge 

the substance of the expert's advice or object to inquiries and information 

that exceed the expert's agreed-upon duties. 

The "technical advisor" who provides a judge with instruction and 

advice outside the presence of the parties poses a more difficult problem.216 While the need for such assistance should be diminished by the 

pretrial procedure outlined above, our interviews suggested that in a 

very few circumstances such an appointment may be essential for a reasoned resolution of a dispute.217 The difficulty is in providing such assistance while preserving the effective participation of the parties in presenting and refuting evidence. 

The First Circuit Court of Appeals affirmed the inherent authority of 

the court to appoint a technical advisor, and offered a number of suggestions for diminishing the concerns that arise when such an appointment 

is made.218 Before making the appointment the court should inform the 

parties of its intention to appoint a technical advisor, identify the person 

to be appointed, and give the parties an opportunity to object to the 

appointee on the basis of bias or inexperience. The expert should be instructed on the record and in the presence of the parties, or the duties of 

the expert should be recorded in a written order. And at the conclusion 

of his or her service, the technical advisor should file an affidavit attesting to his or her compliance with these instructions. Some judges have 

gone further, making a record of discussions and disclosing the record to 

the parties. These safeguards may do little to comfort those who see in 

the technical expert an unforgivable intrusion into the adversarial system, but such safeguards will permit the parties to remain informed of 

the nature of the technical assistance and raise objections when the intended form of assistance encroaches on the duties of the judge. At the 

same time, information about the expert's advice will permit parties to 

challenge misplaced factual assumptions and debatable opinions. 

Ex parte communication between the appointed expert and representatives of the parties poses a separate but more manageable set of prob216. Although such an appointment does not require the authority of Rule 706, 

several of the judges invoked this rule and obtained consent of the parties in 

retaining a technical advisor. 

217. See Reilly v. United States, 863 F.2d 149, 156-57 (lst Cir. 1988); Manual for 

Complex Litigation, Second § 21.54 (1985). 

218. Reilly v. United States, 863 F.2d 149,159-61 (lst Cir. 1988). 

92 Court-Appointed Experts 
lems.219 Ex parte communication between experts and parties will rarely 

be necessary-the most common instance occurs during the physical 

examination of a party. The expert can notify the opposing party of the 

intended nature of the examination and then report the findings, giving 

the opposing party an opportunity to raise objections. Ex parte communication may also be necessary when an expert must learn a trade secret in order to advise the court regarding a motion for a protective order. The ex parte communication serves the same purpose as an in camera examination of claims of privilege and should be equally permissible. 

In most other occasions ex parte communication seems unnecessary. 

Even in the instance where the expert must seek clarification of the position of a party, the opposing party can be notified and may participate by 

conference call. In such circumstances it is likely that many parties will 

consent to ex parte communication between the expert and the opposing 

party. When an expert is deposed, representatives of all parties can be 

invited to attend. 

Testimony of appointed experts. We found that almost all appointed 

experts, other than those serving as technical advisors, presented a 

written report of their findings. In approximately half of the 

appointments experts concluded their service with the presentation of a 

report. In the remaining instances the appointed experts also presented 

their findings in court, either at trial or in a pretrial evidentiary hearing. 

Presentation of expert testimony presents few problems where the 

judge acts as the finder of fact. In such a case the judge is obviously 

aware of the expert's court-appointed status and is sensitive to the role of 

the appointed expert and the duties of the judge. The judge and the parties will have reviewed the report prior to the proceeding,220 and testimony can be presented in a less formal manner. In at least one case the 

expert was permitted to adopt the report as his direct testimony after 

being sworn in. 

When an appointed expert testifies before a jury, the court must decide how the appointed expert will be presented to the jury. The court 

may, in its discretion, decide whether to disclose to the jury that the expert was appointed by the court.221 In six of the seven instances we 

219. Some judges apply the same restrictions on parties' ex parte communications as they impose on themselves and their law derks. When the appointed 

expert is serving as a technical advisor, such restrictions would be especially appropriate. 

220. Formal depositions of appointed experts proved to be infrequent, although on occasion an appointed expert met informally with the parties to discuss the report. 

221. Fed. R. Evid. 706(c). 

Improving the Use ofCourt-Appointed Experts 93 
discovered, the court advised the jury or permitted the parties to advise 

the jury that the expert was appointed by the court. Still, we found no 

consensus among the judges about whether the court's sponsorship of 

such an expert should be mentioned. Those who favor acknowledging 

the court's sponsorship note that the purpose of appointing an expert often is to provide a credible witness for the jury to rely on, and independence from the parties is an important indicator of credibility. Those opposed cite the influence of such testimony, and question whether it is 

necessary to so discredit the testimony of the parties' experts in order for 

the appointed expert to serve effectively. 

We believe that in almost all cases the court's sponsorship of the expert should be explicitly acknowledged, along with whatever limiting instructions are thought to be appropriate regarding the weight to be given 

the expert's testimony relative to the testimony of the parties' experts. If 

experts are appointed where doubts about the credibility of the parties' 

experts persist and other efforts to provide a basis for a reasoned decision have failed, knowledge of the independence of the appointed expert 

will be relevant to achieving the goals of the appointment. There may be 

instances in which the appointed expert offers testimony that serves as 

background information for the jury, or serves as a context for the interpretation of the testimony by the parties' experts-in these cases the 

court's sponsorship is less relevant to the task of the jury. But in such 

cases acknowledging sponsorship should disadvantage neither party. In 

other cases, if the need for independent testimony is sufficiently great to 

appoint an expert, this same need argues that such an action should be 

explicitly acknowledged. 

Conclusion 

Appointment of an expert by the court represents a striking departure 

from the adversarial process of presenting information for the resolution 

of disputes. But such an appointment should not be regarded as a lack of 

faith in the adversarial system. We learned that judges who appointed 

experts appear to be as devoted to the adversarial system as those who 

made no such appointments. Most appointments were made after extensive efforts failed to find a means within the adversarial system to gain 

the information necessary for a reasoned resolution of the dispute. 

Appointment of an expert was rarely considered until the parties had 

been given an opportunity and failed to provide such information. We 

find it hard to fault judges for failing to stand by a procedure that had 

proved incapable of meeting the court's need for information; to insist, in 

such a circumstance, that the court limit its inquiry to inadequate presentations by the parties is a poor testament to the adversarial system and 

94 Court-Appointed Experts 
the role of the courts in resolving disputes in a principled and thoughtful 

manner. 

A better approach is to encoura~e the parties to present information 

that is responsive to the concerns 0 f the court, inform the parties of the 

manner in which their presentation, fall short, encourage the development of more useful testimony, an, ' appoint an expert only when no 

other means is available for reachin, a reasoned decision. The pretrial 

procedure outlined above is intendel to encourage the development of 

such information, thereby strengtheni g the presentations of the parties 

and facilitating the appointment of a expert when such efforts have 

failed. 

Appointment of an expert will und, ubtedly remain a rare and extraordinary event, suited only to the mOt t demanding cases. Regardless, 

Rule 706 remains an important alternah 'Ie source of authority to deal 

with some of the most demanding evidem i.ary issues that arise in federal 

courts. 

Improving the Use of Court-Appointed Experts 95 
Appendix A 


The Honorable ____ 

Dear Judge ____ 

The Center has been asked to inquire into the reasons for the limited 

use of court-appointed experts under Rule 706 of the Federal Rules of 

Evidence. As a first step, we seek to determine how many judges have appointed an expert using the authority of Rule 706. Will you please let us 

know if you have exercised this authority by completing and returning the 

enclosed sheet. 

Please note that we are not asking about instances in which you have 

appointed experts to serve as special masters, or appointed experts to assist in determinations of fitness to stand trial. We are inquiring only about 

the appointment of experts under the authority of Rule 706 to aid in the 

presentation of evidence. 

This inquiry is for the limited purpose of determining the extent to 

which the authority of Rule 706 has been exercised. At some future date 

we may wish to seek advice from some of those who have experience with 

Rule 706, but in returning the card, you incur no obligation to participate 

further. 

If you have questions or wish to speak with us about our request, 

please call Joe Cecil or Tom Willging (both at FTS 633-6341) or me. We 

greatly appreciate your assistance. 

Sincerely, 

William B. Eldridge 


Director of Research 


Enclosure 

97 
Appendix B 


Response of the Honorable , of the ____ 

1. 	Have you appointed an expert under the authority of Rule 706 of the 

Federal Rules of Evidence? 

No 

Yes 


1 case. 


2-5 cases. 


5-10 cases. 


10-20 cases. 


More than 20 cases. 


2. 	Are experts, appointed under Rule 706, likely to be helpful in certain 

types of cases? 

No 

Yes 

Tort 

__ Product Liability Law 

__ Employment Discrimination 

Antitrust Law 

Securities Law 

__Civil Rights Law 

__	Voting Rights Law 

Contract Law 

Patent Law 

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Criminal Law 

Other (please specify) ____ 

Thank you for 

your assistance. 

99 
AppendixC 


Protocol for Telephone Interviews of Single Users of Rule 706 

Judge Date _____ 

General Observations: 

A. 	 Identification of the Dispute 

1. 	 What was the nature of the dispute that led to the appointment of 

the 706 expert? 

2. 	 How did you become aware of the need for a 706 expert? 

3. 	 What concerns led you to appoint a 706 expert (e.g., mitigate irresponsible testimony, increase the quality of expert testimony, offer 

the factfinder an independent explanation of the underlying procedure or standards, encourage settlement)? 

4.* Did you attempt other means of resolving the conflict before appointing the 706 expert? 

B. 	 Appointment and Compensation 

5. 	 At what point in the pretrial process did you appoint the 706 expert 

(e.g., before discovery, after discovery, after finding of liability to 

assist in determining damages or remedies)? 

6. 	 Would it have been beneficial to have known about the need for a 

706 expert earlier in the litigation? 

7.* 	 Did both parties employ testifying experts? 

8. 	 Did either or both parties oppose appointment of a 706 expert? 

9.* 	 Was the litigation generally contentious in areas other than expert 

testimony? 

10. How was the expert selected? *Did the parties nominate candidates? 

11.* Did you identify candidates other than those nominated by the parties? 

12.* Was it difficult to identify a neutral 706 expert? 

13.* How was the amount of compensation determined? Who paid? 

101 
C. 	 Interaction with the 706 Expert 

14. 	 How was the expert instructed in his or her duties (e.g" by a written 

order, by a conference with the parties present)? 

15.* 	Was there a need to clarify the instructions? (If yes) How was this 

done? 

16. 	 Did you communicate directly with the expert outside of the presence of the parties? Did you permit the expert to communicate directly with the parties? Separately or together? 

17. 	 Did the expert prepare a written report? 

18. 	 Was the 706 expert deposed? 

19. 	 Did the expert testify at trial or in a hearing? (If yes) Was the expert 

cross-examined? *Did you examine the expert? 

20. 	 (If expert testified at a jury trial) Did you disclose that the court appointed the 706 expert? 

21. 	 Was the disputed issue resolved in a manner consistent with the 

advice or testimony of the 706 expert? 

22. 	 Did the testimony of the court-appointed expert overwhelm the expert testimony offered by the parties? 

D. 	 Improvement in 706 Practice 

23. 	 Were you satisfied with the services provided by the 706 expert? 

Would you use a 706 expert again in the same circumstances? 

(Attempt to distinguish the contribution of the individual from the 

contribution of the procedure to the judge's evaluation.) 

24. 	 (If satisfied with 706 experience) Why haven't you used the procedure more often? 

25. 	 Why have so few other judges used 706 experts <e.g., lack of knowledge about the procedure for recognition and appointment, concern 

about interfering with the adversarial system, rarely have cases involving scientific or technical issues, testimony of parties' experts 

makes additional expert testimony unnecessary)? 

26. 	 What, if any, changes would make court-appointed experts more 

useful? 

102 Court-Appointed Experts 
"May I ask you two more general questions not related to this specific 

case?" 

27.* 	Have you threatened to appoint 706 experts as a means of improving the quality of the expert testimony or resolving the case? 

28.* 	 Did your most recent trial involve evidence that was scientific or 

technical in nature? (If yes) Did you consider appointment of an expert? Why not? 

Concluding Observations and Notes: 

* These questions were asked if time permitted. 

AppendixC 	 103 
Appendix D 

Protocol for Telephone Interviews of Multiple Users of Rule 706 

Date __~~~__ 

General Observations: 

1. 	 Your response to our survey indicated that you had used a courtappointed expert in cases. Will you briefly describe the cases 

and the nature of the disputes that led to the appointment of the 706 

experts? Are there some common characteristics of these cases? 

2. 	 Your response to our survey indicated that you thought that courtappointed experts would be more helpful in cases such as [INSERT 

CASE TYPES]. Why are such cases particularly suitable? 

Observations Concerning the Most Recent Appointment: 


We have a number of questions about the specific procedures used to 


appoint an expert under Rule 706. For convenience, we wish to focus on 


the most recent instance in which you appointed an expert. Please iden­


tify or describe that case. 


3. 	 Did you follow a standard procedure for appointing an expert? 

Please describe. When in the course of the litigation did you appoint 

the 706 expert? Would it have been helpful to appoint the expert 

earlier in the litigation? 

4. 	 Did you suggest using a 706 expert, or did the suggestion come 

from one of the parties? 

5. 	 Did either or both parties oppose appointment of the 706 expert? 

Have there been other cases in which you proposed using a 706 expert and did not when the parties opposed it? (If yes) What was the 

nature of this opposition? 

6. 	 How did you select the expert? Did you permit the parties to nominate candidates? (If yes) Did you identify candidates other than 

those nominated by the parties? 

7. 	 Was it diffi.cult to identify a neutral 706 expert? 

8. 	 How did you instruct the expert in his or her duties? Was there a 

need to clarify your instructions? (If yes) How was this done? 

9. 	 Did you permit the expert to communicate directly with you outside the presence of the parties? Did you permit the expert to communicate directly with the parties? (If yes) Separately or together? 

105 
10. 	 Did the expert prepare a written report? Did the parties depose the 

expert? 

11. 	 Did the 706 expert testify at a trial or hearing? [USE THIS 

QUESTION TO GET INDICATION OF RATE OF SETTLEMENT] 

(If yes) Was this a jury trial? (If no) Would it have been a jury or 

bench trial? 

12. 	 (If 706 expert testified) Who called the expert? Was the expert crossexamined? Did you examine the expert? 

13. 	 (If a jury trial) Did you disclose to the jury that the court had appointed the 706 expert? (If no) How did you disguise that fact? Did 

the testimony of the court-appointed expert appear to overwhelm 

the expert testimony offered by the parties? 

14. 	 (If not a jury trial) Have you presided at a jury trial at which a courtappointed expert offered testimony? (If yes) Did you disclose to the 

jury that the court appointed the 706 expert? (If no) How did you 

disguise that fact? Did the testimony of the court-appointed expert 

appear to overwhelm the expert testimony offered by the parties? 

15. 	 Was the disputed issue resolved in a manner consistent with the 

advice or testimony of the 706 expert? 

16. 	 How was the amount of compensation determined? Who paid? 

General Observations Relating to Improvements in Using CourtAppointed Experts: 

17. 	 How has your use of court-appointed experts changed as you have 

gained more experience? What problems have you encountered? 

Have you been satisfied with the services provided by the 706 experts? 

18. 	 Have you appointed an expert in cases in which one of the parties 

has not retained an expert? 

19. 	 How do the prospects for settlement of the case influence your decision to appoint an expert? 

20. 	 In your opinion, why have so few other judges used the authority to 

appoint 706 experts? 

21. 	 What, if any, changes to Rule 706 would make court-appointed experts more useful? 

Concluding Observations and Notes Re Suitability as a Case Study: 

106 Court-Appointed Experts 
Appendix E 


Protocol for Telephone Interviews of Judges Who Have Not Used 

Rule 706 

Judge _______ Date 

1. 	 Have you ever appointed an expert under Rule 706? (If yes, go to 

protocol for users. If no, continue with question 2.) 

2. 	 Have you ever had a case in which you considered appointing an 

expert, including any case in which one of the parties suggested that 

you appoint an expert? (If no, skip to 3.) 

A. 	 Describe the nature of the situation that led you to consider 

such an appointment. Was it a bench trial or a jury trial? 

B. 	 Did either or both parties oppose the appointment? On what 

grounds? Why did you choose not to appoint an expert in that 

case? 

C. 	 How did you learn of the problem? What steps did you take to 

deal with the problem (e.g., appoint a special master, attempt 

to narrow the disputed issues prior to trial)? Were these steps 

effective? 

D. 	 What advantages or disadvantages would the procedures that 

you used have in comparison to the Fed. R. Evid. procedures? 

E. 	 Were the parties satisfied with the steps taken? Was there an 

appeal on the issue? 

3. 	 Have you ever had a case in which you learned before trial that the 

parties had experts prepared to testify to diametrically opposed, 

extreme positions in a highly technical subject area (Le., battle of the 

experts)? (If no, then go to 4.) 

A. 	 Describe the case and the nature of the dispute over technical 

evidence. Was it a bench trial or a jury trial? 

B. 	 How did you learn of the problem? What steps did you take to 

deal with the problem (e.g., appoint a special master, attempt 

to narrow the disputed issues prior to trial)? Were these steps 

effective? 

107 
C. 	 What advantages or disadvantages would the procedures that 

you used have in comparison to the Fed. R. Evid. procedures? 

D. 	 Were the parties satisfied with the steps taken? Was there an 

appeal on the issue? 

4. 	 Have you ever had a case in which one of the parties did not present competent opposing evidence, either due to indigence or poor 

legal representation (e.g., failure of advocacy)? 

A. 	 Describe the case and the nature of the dispute? Was it a bench 

trial or a jury trial? 

B. 	 How did you learn of the problem? What steps did you take to 

deal with the problem (e.g., appoint a special master, attempt 

to narrow the disputed issues prior to trial)? Were these steps 

effective? 

C. 	 What advantages or disadvantages would the procedures that 

you used have in comparison to the Fed. R. Evid. procedures? 

D. 	 Were the parties satisfied with the steps taken? Was there an 

appeal on the issue? 

5. 	 In your response to our survey you indicated that appointment of 

an expert under Rule 706 might be helpful in [INSERT CASE 

TYPES]. What factors in those types of cases lead you to think that a 

court-appointed expert might be helpful? 

6. 	 (If not otherwise addressed) Why have so few judges used 706 experts? 

7. 	 What, if any, changes would make court-appointed experts more 

useful? 

108 Court-Appointed Experts 
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