NOTE: NEUTRAL EXPERTS
Use of court-appointed experts is a highly desirable method of assisting juries in cases in which they would otherwise be confused by a barrage of contradictory expert opinions. In addition to assisting the jury in choosing between conflicting opinions, the neutral expert may "exert a sobering effect on the expert witness of a party...." Advisory Committee Notes to Rule 706. Yet many judges have been reluctant to appoint experts. They fear that the court-appointed expert acquires an "aura of infallibility," id., and becomes too dominant. Despite the fact that the trial judge had "unquestioned inherent power," id., even before the adoption of Rule 706, to appoint a neutral expert, a survey of all federal district judges reveals that few have done so.
Rule 706 is designed to encourage greater use of court-appointed experts. In an effort to dispel qualms about the expert's dominance, Judge Weinstein writes:
The fact of the appointment need not be divulged to the jury if the court fears it would be overimpressed by the status of the witness; the judge may ask the parties for their recommendations and act upon them; a court expert's lack of neutrality can be readily exposed because the parties must be furnished with his report and have an absolute right to call their own experts, thus enabling them to prepare for cross-examination; provision is made for compensation; and many procedural aspects surrounding the use of expert testimony are consolidated.
3 Weinstein and Berger, Weinstein's Evidence 706-11-102 (1981).
When should the court exercise its power to appoint an expert? In addition to the more obvious instances in which the appointment of a neutral expert seems appropriate, such as in criminal cases where the prosecution offers novel scientific evidence and the defense is without resources to mount an adversary examination of its reliability, see, for example, Rule 28, F.R. Crim. P., Professor Green has suggested that the court should consider appointing a neutral expert early in a complex civil case where the crucial issue is highly technical. Green believes that a court-appointed expert in such cases may have a powerful dispute-narrowing and settling influence. Under his proposal, the parties would be encouraged to nominate and select a mutually acceptable neutral expert to be appointed by the court. The expert would then conduct an inquiry into the issues within the scope of his appointment. This inquiry could include examination of documents, inspections, experiments, and interviews with witnesses, including the parties' own experts. Green goes so far as to suggest that in certain cases the court-appointed neutral expert conduct a "mini-trial" among the parties and their experts on the crucial technical issues. Green, Expanded Use of the Mini-Trial, Private Judging, Neutral-Expert Fact-Finding, Patent Arbitration and Industry Self-Regulation, Dispute Management (1981).
In many cases, Green suggests, this process will result in a narrowing of the disputed issues and sometimes in complete settlement of the dispute. If the case does not settle during the expert's inquiry, the neutral expert would then "advise the parties of his findings" by submitting to them his written report, as provided in Rule 706. Green argues that since the expert may testify at trial with the imprimatur of the court, the expert's findings will have a persuasive influence on the parties and very often facilitate informal resolution. The danger with this use of neutral experts is that a party may feel unduly coerced by the prospect of a court-appointed expert's adverse testimony. Some critics of this proposal take the position that the deliberate use of a court-appointed expert for this purpose would violate the parties' rights to trial by jury. Green counters that the expert's opinion is "just coercive enough" and that the parties' rights to a fair trial are fully protected by their right to call their own witnesses, including experts, and to cross-examine the court-appointed expert. What do you think?