44-51 (1985 Roscoe Pound ATLA Foundation, Washington, D.C.)


Cases involving complex scientific, sociological, technical, economic, and business issues pose particularly difficult problems for our adversarial adjudicatory structure. This category includes litigation where the issues are, for example, the infringement and validity of a patent on a computer-based algorithmic model or on a life form; conformance of a product, say an electronic component, to the specifications of a contract or standards of the industry; the cause of the collapse of a bridge; the scope of the relevant market and the defendant's control of that market; and whether the defendant's accounting practices and other actions amounted to violations of the securities laws. It also includes environmental disputes about the actual level of pollution, the short- and long-term health effects of contamination, and the costs of remedying the situation; medical malpractice; and toxic tort or product liability personal injury cases where the issue is whether a particular product is capable of causing certain types of harm and whether that harm was caused by the product in a specific instance. Utility ratemaking cases and other administrative appeals also fall within this category. Such cases make up an increasing percentage of the workload of federal and state courts.

Several factors set such disputes apart from other forms of legal combat. First, their resolution usually requires appraisal of data and analysis of information outside most everyday experience. Indeed, the dispute often turns on an issue that only a person with highly specialized and advanced training or experience can understand. Second, in these cases the "truth" about a key issue--such as the degree of harm likely to be caused over an extended period by a contaminant--may itself be in a state of flux or nearly impossible to determine without years of empirical investigation. Here any decision must be made under conditions of uncertainty that are much greater or are qualitatively different than those faced in other kinds of litigation. Third, developing and presenting proof on the scientific issues is likely to be enormously difficult, time-consuming, and expensive and thus apt to exacerbate the inherent deficiencies and opportunities for abuse present in the adversarial process generally.(1)102 Fourth, the scientists, engineers, or other experts who will be called to testify live in their own cultures and bring their own languages, values, and modes of thought with them. This makes communications among witnesses, lawyers, judge, and jury difficult. Finally, the experts called to testify are likely to be carefully selected and prepared to present only the testimony most favorable to the party that called them. This means that in most cases, the factfinder will be faced with conflicting expert opinion and technical evidence that by definition was beyond the understanding of the factfinder in the first place.

As courts increasingly become the forum where major public policy decisions are resolved, there is a pressing need to develop a method of resolving cases raising complex scientific, sociological, technical, economic, and business issues that eliminates or reduces the deficiencies and abuses of the present system. Increased use of court-appointed neutral experts is one approach. The neutral expert can promote accurate factfinding by assessing the facts objectively and often is a person of higher caliber than is available on a partisan basis. The neutral expert can also serve as a disincentive to strategic manipulation of the litigation process and, most important, promote fast, fair, and efficient settlement.(2)105

Since the adoption of the federal rules in 1975, Rule 706 of the Federal Rules of Evidence is the most likely mechanism for court appointment of a neutral expert. Rule 706, however, is not the only source of such authority. Under Rule 53 of the Federal Rules of Civil Procedure, the court can appoint a master "to report ... upon particular issues or to do or perform particular acts or to receive and report evidence." References to masters are limited by the rule to situations in which "exceptional conditions require it" (nonjury cases) or only "when the issues are complicated" (jury cases). The "exceptional" case requirement has limited the cases in which masters have been appointed, but where they have, masters have exercised extraordinary powers over pretrial and trial-stage proceedings. In appointing masters and experts, in addition to Rule 53 federal courts have relied on their "inherent authority" over the administration of justice and on the consent of the parties.

The characteristics that make Rule 706 particularly suitable as an alternative dispute resolution device are that:

1. It does not require the agreement of the parties. The court may appoint an expert on its own motion or at the request of one party.

2. It provides for the parties to participate in selecting the expert and in forming the instructions. The court may appoint any expert witnesses agreed on by the parties or its own selection. The expert is informed of his duties in writing by the court or at a conference in which the parties "shall have opportunity to participate."

3. The expert advises the parties of his findings. This presents an opportunity for the expert to play a mediation/conciliation role. The expert's deposition may also be taken by any party.

4. The procedure is coercive but nonbinding. The expert's opinion is admissible but it is not conclusive. Jury trial rights are preserved. Cross-examination and the calling of retained experts is permitted, but the court may tell the jury when an expert was court-appointed.

5. The expert is entitled to "reasonable compensation." Costs are apportioned in the court's discretion, and may be taxable like other litigation costs to the parties.

6. Appointment at any phase of the proceeding is allowed.

Similar neutral expertise can also be applied to complex disputes in other ways. For example, parties can agree privately, outside the litigation process, to retain a neutral expert to advise them on disputed complex issues. Disputants could agree to hire a neutral expert even before litigation begins. There seem to be no barriers that would prevent a privately appointed neutral expert from performing any of the functions specified in Rule 706: conducting research, advising the parties of his findings, giving his deposition, and testifying in court. Although the expert would not be identified to the jury as court-appointed, the parties could agree to disclose to the jury that the expert was jointly selected and retained.

A privately-appointed neutral expert may be able to do much more than an expert appointed under Rule 706. For example, if the parties agree, the privately-appointed expert could investigate documents, persons, and things, and perform experiments and testing. The authority of the Rule 706 expert to conduct such discovery is unclear. Carrying this procedure to its logical conclusion, the parties could agree to submit the dispute to a neutral expert for binding resolution. This, of course, is arbitration or reference under a statute and rule providing for a general order of reference. Private referral of a dispute to a neutral expert for a nonbinding opinion or assistance might be a form of mediation or minitrial. The important distinctions between these other forms of neutral assistance and Rule 706 are that they require the parties' consent, and their purposes generally do not include neutral fact-finding for trial presentation.

To understand how the appointment of a neutral expert will affect the settlement process, it is necessary to understand how litigants decide to settle cases. The factors influencing the decision whether and when to settle a dispute include "rational" factors intrinsic and extrinsic to the dispute, such as the likely outcome and the litigants' resources, needs, averseness to risk, and staying power, and "nonrational" factors such as the litigants' emotional condition....

... In complex scientific and technical cases, disparity in the parties' estimates of the plaintiff's probability of success are usually caused by sincere and strongly held divergent views on how a crucial technical issue will be decided. Often each side's high estimate of its probability of success is based principally on the opinions and assurances of its experts. Unless some additional information causes the parties to reevaluate their experts' confidence in their opinions or the parties' confidence in their experts' opinions, the disparity between the estimates of success will prevent settlement.

The most effective piece of additional information can be the opinion of a neutral expert on a key technical issue. Indeed, the mere possibility that a court-appointed neutral expert will testify at trial may be enough to cause the parties to reassess their pretrial estimates of success.

Appointment of a neutral expert may have several other settlement-inducing side-effects. Although Rule 706 does not specify how the expert shall conduct his inquiry and formulate his opinions, contact between the expert and the parties is not prohibited and, except where the court directs that all communication between the expert and the parties pass through the court, is indeed likely. In "instructing" the expert as to his duties, the court, certainly when the parties consent and possibly even when they do not, may instruct the expert to inspect people, places, and things. This may well include discussions with the parties through their lawyers and experts, whether from highly unstructured and informal ex parte discussions or highly structured on-the-record hearings.

Departing from the "pure" neutral-expert role in this manner, during the course of his investigations there may be many opportunities for the neutral expert to assume a mediational role between the adversaries' own experts. Thus, the expert may find himself assuming some or all of the functions of other kinds of third-party intervenors to a dispute. While this creates danger for an inexperienced or overly ambitious neutral expert, it also provides significant dispute resolution opportunities. In formulating instructions to the neutral expert, the court and parties should clearly delineate the expert's functions, duties, and range of activities. In this way the court can minimize the danger that the neutral expert will overstep his role and destroy his effectiveness, while at the same time maximizing the possibilities for successful intervention.

If neutral experts are such a readily available palliative to the excesses of adversariness in complex cases, why are they not used more often?(3)120 Besides just plain lack of knowledge about the potential benefits, their underutilization may be the result of ingrained conceptions about the adjudicatory process and the unease of judges and lawyers who believe that introducing neutral experts will threaten their roles in the process. The most common criticism of the use of neutral experts is that they will influence the jury excessively. It is unclear what "excessively" means here. If the case involves subject matter on which expert testimony is admissible, then expert testimony should influence the jury. Further, when there is a clash of testimony from the parties' experts, the opinion of a nonpartisan expert should receive important consideration from the jury because it is at least free from adversarial bias. "Excessive influence" in this context must mean "giving the evidence more weight than it deserves," but the procedures of Rule 706 and the traditional tools of the adversary process are available to control the impact of the neutral expert's testimony on the jury. There is no evidence that these procedures are insufficient to limit the impact of neutral expert testimony to its proper level.

What judges (and lawyers) may really be concerned about is the power that they fear the neutral expert will take away from them. In our system, the judge and parties control the adversary process. There is only one neutral in the courtroom and that neutral is the judge. The only experts are leashed to the parties' lawyers. Bringing a neutral expert into the process destroys the judge's monopoly on neutrality and the parties' control of the expert information and opinion. But in the face of strong evidence that the lawyers' lock on the levers regarding expert testimony can retard accurate fact-finding and hinder settlement, some adjustments seem appropriate. The traditional roles of judges and lawyers should give way slightly if adjustments will rationalize the adjudicatory process, making it fairer and more efficient.

1. 102. With regard to the difference between the process of factfinding in law and in science, see F. Pollack & F. Maitland, The History of English Law 670-71 (2d ed. 1968), quoted in Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).

The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate between two poles. At one of these the model is the conduct of the man of science who is making researches ... and will use all appropriate methods for the solution of problems and the discovery of truth. At the other stands the umpire of our English games, who is there ... merely to see that the rules of the game are observed.

See also Hart & McNaughton, Evidence and Inference in the Law, in Evidence and Inference 48, 50-51 (Lerner ed. 1959); Russell, On Induction, in The Problems of Philosophy 60-69 (1912).

See M. Saks & R. Van Duizend, The Use of Scientific Evidence in Litigation (1983); Nyhart & Heaton, Proceedings of the Task Force Workshop on Disputes Involving Science and Technology, in Corporate Dispute Management 389, 390 (1982). Nyhart and Heaton point out that "crucial concepts like truth, fact, and probability, hold different meanings for each culture, and each set of persons [lay and scientific] may be threatened."

2. 105. On the common law use of neutral experts generally and the early use of court-appointed medical experts pursuant to rules or statutes, see Sink, The Unused Power of a Federal Judge to Call His Own Expert Witness, 29 So. Cal. L. Rev. 195, 197 (1956); Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U. Cal. L. Rev. 285, 293 (1943); Schuck, Techniques for Proof of Complicated Scientific and Economic Facts, 40 F.R.D. 38 (1967); Wick & Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins. Counsel J. 115, 131 (1967); Levy, Impartial Medical Testimony--Revisited, 34 Temple L.Q. 416, 424-25 (1961); Van Dusen, The Impartial Medical System: The Judicial Point of View, 34 Temple L.Q. 386, 396-397 (1961); De Parq, Law, Science, and the Expert Witness, 24 Tenn. L. Rev. 166, 171 (1956).

See also 3 J. Weinstein & M. Berger, Weinstein's Evidence at pp.706-8 (1985), tracing the development of the present evidence rules from the Uniform Expert Testimony Act in 1937 through the Model Code of Evidence (Rules 403-410), and the 1953 draft of the Uniform Rules of Evidence (Rules 59-61) into Rule 28 of the Federal Rules of Criminal Procedure and Rule 706 of the Federal Rules of Evidence. Prior to adoption of Rule 706 in 1975, the only rules authorizing the appointment of an expert in federal cases were contained in local rules. See 3 Weinstein's Evidence at pp.706-8 n.6. In 1952, New York adopted a neutral expert rule for impartial medical testimony in personal injury cases. New York Impartial Expert Testimony Plan, 550.11(1), Rules for the Supreme Court of New York and Bronx Counties. See P. Rothstein, Federal Rules of Evidence 300-306 (student ed. 1979).

3. 120. The use of neutral experts by federal judges is sufficiently uncommon that their exceptional use is noticeable. Judge Finesilver employed a panel of five medical experts in In re Swine Flu Immunization Products Liability Litigation, 495 F. Supp. 1185, with good results. Judge Zampano has reported successful use of court-appointed experts in over a hundred cases over a twenty-year span in cases ranging from backsprains to complex commercial cases. He finds them very effective in construction cases. See Green, Proceedings of the Intercorporate Disputes Task Force Conference, in Corporate Dispute Management, at 333 (1982).

To ascertain more precisely how often neutral experts are appointed in civil cases, in 1980 I surveyed all federal trial judges. I asked them:

1. Whether they had ever appointed a neutral expert under Rule 706 or any other provision in civil cases over which they have presided (other than personal injury cases).

2. Other than in personal injury cases, whether they had ever used their power to appoint a neutral expert deliberately to promote settlement, and, if so, in what kinds of cases and with what results.

3. Whether they believed that the use of a neutral expert had significantly furthered settlement in any of their cases; and if so, how often.

4. In what kinds of cases they believed the early use of a court-appointed expert other than a medical panel in personal injury cases, could help the parties settle the case themselves.

5. What problems they experienced in using court-appointed experts, specifically focusing on increased delay, increased costs, selection of the expert(s), and excessive influence of the expert(s).

Of the 568 judges in the sample, only nine reported any significant use of neutral experts or enthusiasm for the practice. Of the 308 judges who responded, 212 had no experience with the concept, 8 rejected the idea in principle, and 54 indicated they had some moderate interest in or incidental experience with the concept. Of the judges who had appointed a neutral expert, only four had done so deliberately to promote settlement, although a much larger number of the respondents stated that they thought a neutral expert would have a positive effect on the settlement process. The types of cases most frequently mentioned as candidates for the appointment of a neutral expert to promote settlement were patent infringement, condemnation, and antitrust cases. The most frequently mentioned problems experienced by the judges related to increased costs--"getting the expert paid," one judge put it, and difficulty of selection. Inquiry of the Administrative Office of the United States court turned up no additional experiences with the use of neutral experts in civil cases for settlement purposes.

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