Judges are saying recently that in particular kinds of cases, Experts are helpful to them in resolving those cases. Since these recent judicial observations were apparently not recorded and there was no expectation of attribution of particular views to particular Judges, their remarks will be reported anonymously in this article.
The kinds of cases in which Experts are helpful to Judges in resolving the issues are cases involving backgrounds which most Judges simply do not have, such as in cases which involve scientific and other technical issues. To these cases may be added many Insurance Coverage and Insurance Bad Faith cases which also often present technical, complex issues.
One Judge observes that a case has often gone down the road for a long ways before a Judge appreciates the technical advice that an Expert can bring to bear. Many Judges admit that it is a signal of when a Judge may need the help: When the Experts already retained by the parties have a legitimate dispute among themselves and there is difficulty in understanding their Opinions and how they reached them.
Most Judges, perhaps all Judges, would treat the Court-appointed Expert like they treat the relationships they have with their own Law Clerks.
The parties play a huge role. They can suggest to the Trial Judge that an Expert appointed by the Court -- selected or at least suggested by the parties -- may assist the Court in addressing the issues and resolving the case. The parties will pay the Court-appointed Expert's fees. That procedure is usually far less expensive to the client than being forced to appeal an unfavorable outcome which could (and should) have been avoided by the Trial Court's reliance on the advice of an Expert.
In short, as one Judge observed, if the issue is complicated, uncomplicate it. If you cannot uncomplicate it, the Judge probably needs the technical advice of the Court-appointed Expert.
In Federal Courts, Federal Rule of Evidence 706 provides the tool:
Rule 706. Court-Appointed Expert Witnesses
(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.
(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:
(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the court directs — and the compensation is then charged like other costs.
(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert.
(e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.
Note that under FRE 706, the Court-appointed Expert Witness can be deposed by any party and can be called by any party or the Court to testify at Trial. Ordinarily in human experience across the United States, most Insurance Bad Faith cases settle after Expert Witnesses are deposed. It will be interesting to see if that holds true after Court-appointed Expert Witnesses are deposed.
Please Read The Disclaimer.
Also check out the outstanding Cavalcade of Risk at http://www.workerscompinsider.com/2013/01/cavalcade-of-ri-94.html, hosted by Julie Ferguson.
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