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It is a basic tenet of the adversary system that through his or her advocate, the litigant exercises primary control over the selection and presentation of witnesses. Landsman, Readings on Adversarial Justice: The American Approach to Adjudication (1988). In part, the theory is that by giving the litigant such control at trial, the litigant has greater pretrial incentive to unearth the evidence. The net result should be a more complete evidentiary record, permitting a sounder decision. (“Professional Responsibility: Report of the Joint Conference,” 44 A.B.A. J. 1159, 1159-61 (1958). Another part of the case for litigant control is that minimizing the judge’s pretrial role in developing the facts maximizes the probability that at the final hearing, the judge will be truly impartial. In any event, the control applies to expert as well as lay witnesses. However, in the case of experts, the litigant is accorded another right: It has long been the practice that although the litigant may make only limited payments to lay witnesses to reimburse them for certain types of expenses, the litigant may pay the expert for his or her service as a witness. For instance, Disciplinary Rule 7-109(C) of the A.B.A. Model Code of Professional Conduct provides that an attorney could furnish a payment for testimonial services only to “an expert witness.” Party control of witnesses thoroughly criticized For decades, though, the practice of party control over expert witnesses has been sharply criticized. McCormick, Evidence � 17 (5th ed. 1999). The argument runs that rather than seeking the most objective scientist, the attorney searches for an advocate in scientist’s clothing-a witness compliant enough to provide a favorable opinion and charismatic enough to charm the jurors. The attorney can “shop around” for the “right” expert. The expert has a powerful incentive to testify to a favorable opinion because the attorney is footing the bill and the witness’ performance in this case will affect other attorneys’ willingness to hire the witness in future cases. One popular, jaundiced view is that for the right price, an attorney can find an expert to testify to any opinion. Hagen, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice (1997). In the words of the first sentence of the advisory committee note to Federal Rule of Evidence 706, “The practice of shopping for experts [and] the venality of some experts . . . have [long] been matters of deep concern.” One proposed antidote has been the court appointment of experts. “Cases are recorded as early as the 14th century . . . of judges summoning experts to aid them in determining scientific issues.” McCormick, supra, � 17, at 81. In the United States, Uniform Rule of Evidence 706 explicitly authorizes the practice. Likewise, Federal Rule of Evidence 706 empowers federal judges to make such appointments. The accompanying advisory committee note states that “[t]he inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned.” According to the note, the testimony by a court appointee is more likely to be objective, since an appointed expert does not have to look to a litigant for compensation. The note adds: “The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness.” The note concedes that, in the past, court appointment was “a relatively infrequent occurrence,” but also that “the trend is increasingly to provide for their use.” That hope may have been overstated. Although 41 states have adopted evidence codes patterned after the Federal Rules, many states at least tinkered with Rule 706. Two handfuls of states deleted Rule 706 from their evidence code. Imwinkelried, “The Court Appointment of Expert Witnesses in the United States: A Failed Experiment,” 8 Int’l J. Med. & Law 601, 605 (1989). In other states, the drafters included legislative history materials that made it crystal clear that they wished to see the judge’s power exercised sparingly. By way of example, in Wisconsin, the Judicial Council Committee added an explanatory note that “routine utilization of the power to appoint experts is an abuse of discretion.” That sentiment is not confined to state court. In one survey of 400 federal district court judges, only 20% reported that they have ever appointed an expert. Cecil & Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, at 47 (1992). Some commentators believe that judicial reticence to appoint experts is so ingrained that the only way to overcome is to legislatively mandate such appointments. Gross, “Expert Evidence,” 1991 Wis. L. Rev. 1113. There are at least two explanations for this judicial reticence. One is a belief that the practice is inconsistent with the basic philosophy of the adversary system. Cecil & Willging, supra, at 92. A further concern is that jurors will attach undue weight to the appointee’s testimony. Federal Rule of Evidence 706(c) permits the trial judge to inform the jury that one expert is court appointed. In the words of a federal judge, “the presence of a court-sponsored witness, who would most certainly create a strong, if not overwhelming, impression of ‘impartiality’ and ‘objectivity,’ could potentially transform a trial by jury into a trial by witness.” Kian v. Mirro Aluminum, 88 F.R.D. 351, 356 (D. Mich. 1980). There are, however, important cross-currents. In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the court mentioned Rule 706 court appointments as a tool that trial judges could use to help ensure the reliability of the testimony proffered to the jury. In his concurring opinion in General Electric Co. v. Joiner, 522 U.S. 136 (1997), Justice Stephen G. Breyer approvingly quoted a passage in an amicus brief that “[j]udges should be strongly encouraged to make greater use of their inherent authority . . . to appoint experts.” Id. at 147, 149-50. Despite such urgings, there has been only “a modest” increase in the number of court appointments. Note “Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level,” 93 Colum. L. Rev. 473, 483 (1993). However, there is a new proposal on the table that has the potential to significantly reduce the opposition to judicial appointments of expert witnesses. In the first edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence 9, 34 (1994), Judge William Schwarzer suggested limited court appointments. In almost of all the previous cases, the court-appointed expert was asked to conduct the same analyses as the litigants’ experts. The appointee was tasked to identify relevant scientific principles, apply them to the specific facts of the pending case, and generate an opinion on one of the ultimate issues in the case. In those cases, there was not only a possibility but a probability that the appointee’s opinion would directly conflict with the opinions expressed by one or all of the other experts. However, Schwarzer proposed utilizing court-appointed experts for the limited purpose of conducting a tutorial or primer for the jury. Id. Using court appointees in this fashion would place less strain on the adversary system. The greatest strain arises when the appointee is asked to opine on the identical question that the litigants’ experts are addressing. In that event, a judicial instruction, informing the jury that one expert has been court appointed, may well tip the balance in favor of that expert. In contrast, if the expert confines his or her testimony to the general principles or methodologies in the speciality field, the testimony may not conflict with the testimony of any other expert in the case. Moreover, even if the court appointee limits his or her testimony in this manner, the appointee’s testimony could be quite helpful to the jury. One of the fundamental problems of party control over expert testimony is that all the expert information comes out of the mouth of partisan experts. Jurors’ difficulty separating the wheat from the chaff When all the information is presented by paid experts, it is difficult for the jury to separate the wheat from the chaff. Even when the expert is testifying to settled propositions in the discipline, the testimony is subject to doubts due to the witness’ bias. If a court appointee confines his or her testimony to the core, established theories and methodologies in the field, the testimony gives the jury a sounder basis to choose between the ultimate opinions voiced by the paid experts. Armed with the tutorial, the jurors can inquire: Which ultimate opinion is more consistent with the basic fund of information in the discipline? Or which ultimate opinion entails greater extrapolation from the established principles in the discipline? Finally, the practice of limited appointments might make more scientists willing to accept court appointments. Some of the best scientists balk at appointment because they find the clash of the adversary system distasteful. Such clashes are almost inevitable when the court appointee is asked to opine on the identical question as the partisan experts. Some of the most scrupulous scientists might be more receptive to court appointments if they realized that they would asked to present only a limited tutorial to the jury. It would be foolish to contend that Schwarzer’s proposal is a panacea. Like paid experts, court-appointed experts can come to the witness stand with doctrinal biases. Ideology sometimes masquerades as expertise. However, the adoption of the proposal would be a step in the right direction. Employing appointed experts to conduct tutorials for the jury would not only present the jurors with more impartial testimony; the tutorial would better enable the jurors to unmask the opinions that are ipse dixit. To date, Schwarzer’s proposal has attracted little attention, but my hope is that this column will help it receive the attention it deserves. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is also co-author of Scientific Evidence (Lexis Law Pub. 1999).

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