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Federal Circuit Allows But Discourages Court-Appointed Experts:

Back in March, in Monolithic Power Systems, Inc. v. O2 Micro Int'l Ltd., the Federal Circuit Court of Appeals held that the district court's appointment of a nonpartisan expert under Federal Rule of Evidence 706 was not an abuse of discretion. That's the good news, and it's apparently better news than I initially thought, because I.P. commentators seem to think that this was a novel event.

The bad news is that Judge Randall Rader added dictum that will undoubtedly limit the future appointment of nonpartisan experts in cases that may wind up before the Federal Circuit on appeal: "The predicaments inherent in court appointment of an independent expert and revelations to the jury about the expert's neutral status trouble this court to some extent. Courts and commentators alike have remarked that Rule 706 should be invoked only in rare and compelling circumstances." Judge Rader than cited exactly one court, a district court opinion from 1993, and one commentator, Wright's Federal Practice and Procedure.

In fact, for well over one hundred years, evidence scholars (including me, and see citations in this article) and other commentators have (with some exceptions, of course) been arguing for much greater use of court-appointed experts, and have expressed frustration at judges' consistent reluctance to do so, whether under their inherent powers (before Rule 706), or under Rule 706 and state equivalents.

Rule 706 itself says nothing about "rare" or "compelling" circumstances, but simply: "The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection."

As far as courts are concerned, in Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court stated: "Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules.... Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing." In the follow-up case of Joiner v. General Electric Co., Justice Breyer, concurring, strongly advocated that courts take advantage of their Rule 706 power to appoint experts. One of the sources he cited was a book by Judge Jack Weinstein, author of the one opinion relied upon by Judge Rader.

In short, neither the text of Rule 706, nor the opinions of evidence scholars, and certainly not precedent emanating from the highest court in the land suggests that use of Rule 706 is limited to rare and compelling circumstances.

cboldt (mail):
LOL. Another dog bites man story (judge fabricating the extent or meaning of precedent).
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I'm wondering about the real reason for fabricating a reality in order to obtain the outcome of restraining judicial prerogative to select its own expert(s). Is a special master an expert?
6.25.2009 10:38am
rosetta's stones:
So judges/lawyers are sometimes too technically illiterate to fish their way through a proceeding, without training wheels. Who'da thunk it?

I suspect this isn't an issue of the law, but rather mostly an issue of human resources, and personnel qualifications.
6.25.2009 10:45am
krs:
Very interesting. Perhaps this opinion is another exhibit in the argument that the Federal Circuit needs at least one judge who's been a district court judge.

Judge Rader's concern seems legitimate, though. In a patent case, having a court-appointed expert advise the judge or explain the science to the jury seems largely uncontroversial. Having that same expert testify to the jury, however, and having the court's imprimatur on his testimony, seems a bit unfair to the parties, as there's probably a strong inclination on the part of the jury to defer to "the court's expert."

Perhaps the answer is that if the court-appointed expert is wrong, the parties can address that in cross-examination and with competing testimony of their own hired-gun experts. And the trial schedule can be set up so that the parties are on notice of what opinions the court's expert reaches....
6.25.2009 10:46am
cboldt (mail):
-- the trial schedule can be set up so that the parties are on notice of what opinions the court's expert reaches... --
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All those details are argued in advance of the trial. The jury gets a scripted show. Experts always know the findings, methods, and ultimate opinions of opposition experts.
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-- So judges/lawyers are sometimes too technically illiterate to fish their way through a proceeding, without training wheels. --
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An expert is oftentimes technically illiterate too. I've read some very bizarre (false) theories of mechanics and physics from self-proclaimed "experts" who, as far as the law was concerned, were perfectly qualified to testify.
6.25.2009 10:56am
Ryan Waxx (mail):

Experts always know the findings, methods, and ultimate opinions of opposition experts.


But we aren't talking about an opposition expert, but rather a court-appointed one. So I wouldn't just assume the same protections necessarily obtain.
6.25.2009 11:09am
rosetta's stones:

"An expert is oftentimes technically illiterate too. I've read some very bizarre (false) theories of mechanics and physics from self-proclaimed "experts" who, as far as the law was concerned, were perfectly qualified to testify."


Probably so, and maybe I'm one of 'em. But, the parties to the case get the chance to shoot me down, when I testify.

I'm speaking more of the whole process itself... would a typical judge today even have a base handle on the theories of mechanics and physics? Is that why they're seeking to be fitted with training wheels, to inform their rulings, pre-trial in particular?

If some dope with a yards long CV buffaloes a party to a case, then they didn't try hard enough, imo. That's no reason to coddle technically illiterate judges. Find better judges, if that's what you need.
6.25.2009 11:37am
martinned (mail) (www):

Having that same expert testify to the jury, however, and having the court's imprimatur on his testimony, seems a bit unfair to the parties, as there's probably a strong inclination on the part of the jury to defer to "the court's expert."

Euh... isn't that exactly the idea? That's why this issue was discussed on Prawfs recently in terms of adversarial vs. inquisitorial system.
6.25.2009 11:37am
martinned (mail) (www):

That's no reason to coddle technically illiterate judges. Find better judges, if that's what you need.

Are you serious? Not only are they supposed to be experts on law, but they're supposed to be well versed in all other fields of human inquiry as well? Or are you simply advocating the creation of specialist courts for certain areas (like IP)?
6.25.2009 11:40am
rosetta's stones:
If the fight is over court appointed experts, who will function in the judge's chambers rather than out in the courtroom, then rather than seeking to place Dr. Strangelove in the courtroom, parties will seek to place him in the judge's chambers. It is inevitable.

Drain the frickin' swamp.
6.25.2009 11:42am
byomtov (mail):
If the fight is over court appointed experts, who will function in the judge's chambers rather than out in the courtroom,

I thought the idea was for the neutral expert to testify. I agree with martinned that it seems desirable for the jury to rely heavily on such testimony. Are they supposed to use their own understanding of complex technical subjects instead, or to decide which of two opposing professional expert witnesses is right?
6.25.2009 11:56am
rosetta's stones:

"Are you serious? Not only are they supposed to be experts on law, but they're supposed to be well versed in all other fields of human inquiry as well? Or are you simply advocating the creation of specialist courts for certain areas (like IP)?"


Yes, I'm serious. And, judges may be supposed to be well versed in all fields of human inquiry, but the only manner of confirming their well versedness is their background and education, and in the case of contemporary judges, that seems to skew far wide of technically competency.

No need for specialized courts, just, in addition to appointing judges with the requisite empathy, keep your eye out for technically competent judges, with the appropriate background.

Breyer, for example, is supposedly some sort of anti-trust genius. Beautiful. Appoint him or equal, but also somebody educated in IT, Chemistry or the like, in parallel. Rinse and repeat, until you have an acceptable blend of skillsets on various panels and at various levels. Peer judges inform each other. Cases might be assigned with an eye towards skillsets, much like the Chrysler bankruptcy guy was assigned, I understand.

No need to treat the symptom, treat the disease.





"I thought the idea was for the neutral expert to testify."


Who decides who's nuetral... the technically illiterate judge?
6.25.2009 12:13pm
martinned (mail) (www):

Who decides who's nuetral... the technically illiterate judge?

Picking an expert at random from a fixed pool would already be better than having experts who are completely in the pocket of the parties.
6.25.2009 1:37pm
rosetta's stones:
Why would you presume that to be better somehow?

Who decides who's in the fixed pool of random experts... the technically illiterate judges?
6.25.2009 2:26pm
byomtov (mail):
Picking an expert at random from a fixed pool would already be better than having experts who are completely in the pocket of the parties.

Yes. Just knowing that the expert is not in the pay of either side and does not make a living testifying for one side or the other would be a big help.

Right now we have technically illiterate jurors deciding which paid expert is right. How can the idea of a neutral expert be worse?
6.25.2009 2:27pm
martinned (mail) (www):
@rosetta's stone: By "fixed pool" I had something in mind like "everyone with a Ph.D. in the field", or "everyone with tenure in the field", or whatever other objective rule one would like to propose.
6.25.2009 2:32pm
rosetta's stones:
martinned, my question was rhetorical. The problem isn't availability of information. The 2 parties will bring all the information the court needs, and if they don't, shame on 'em.

The problem lies in the proper execution of the legal process, which evidently some judges are having difficulty executing, likely due to their own personal technical illiteracy. If your aim is to work around that obvious defect, rather than addressing it directly, you'll just be chasing your tail, is all. It introduces process complexity to a process which should be about simplicity and fairness, which complexity is the enemy of.

Suggest starting at the beginning, as described above. Find better judges. That's right... these judges are collectively deficient. They are lacking. They are less than what is required. They are unqualified to sit on these proceedings. They should not be confirmed to positions which obviously require these skillsets.

I can say it any number of ways, but that is the root of it. Art History isn't sufficient training, and does not produce the type of thinking required, to sit on these cases. We have to recognize that, and slowly reconfigure the collective skillset of our pool of judges.

I realize that is a shot to the heart of the lawyer brigades... but there it is. You are lacking. Severely. Own it, because the rest of us have to, as well.
6.25.2009 2:48pm
rosetta's stones:
I'm reminded of that old western, where the rancher's daughter came in and announced she was going off to study "art history". The incredulous rancher says "ART?! Art WHO?!"
6.25.2009 3:10pm
tvk:
To be fair, you should probably note that Wright's Federal Practice and Procedure is the bible of the Federal courts. In many ways, better than binding precedent.
6.25.2009 3:11pm
martinned (mail) (www):
@rosetta's stone: I'd say you're asking for too much. Such people don't exist, or at least not in sufficient numbers to fill all the seats. Instead, the most popular solution for this problem in the world today is to create specialist courts, where the judges have special knowledge.

Even in the US, the Delaware [chancery] courts have special skill not only in company law, but also in finance and accounting, because those fields are essential to their positions. In federal law, some cases are focused on the DC district court and/or court of appeals. In immigration law, the case first comes before the Board of Immigration Appeals before it reaches the ordinary courts. In that way, the lack of knowledge of the courts is compensated for or fixed.

It would be easy to do that more. In my country, all ordinary courts have civil, criminal and administrative chambers, which seems like a sensible idea. More such chambers could be created, depending on the need. Or certain matters could be focused on just one court, so that expertise may be collected and developed there.

The problem with this idea is the risk of capture. But again, you can't wish a solution on a lucky star. (= You can't have your cake and eat it, too.)
6.25.2009 3:17pm
levisbaby:
The idea that any expert can be neutral is just silly.
6.25.2009 3:41pm
davidbernstein (mail):
I talked about "nonpartisan" experts, not "neutral" experts, for a reason.

As for Wright, it's been terrible on expert issues for many years.
6.25.2009 3:55pm
rosetta's stones:

I'd say you're asking for too much. Such people don't exist, or at least not in sufficient numbers to fill all the seats. Instead, the most popular solution for this problem in the world today is to create specialist courts, where the judges have special knowledge.


No, I'm not asking for too much, I'm asking for something sensible and obvious.

The people certainly exist, but you're correct, not much in the lawyer ranks... where they are severely lacking... and that is the root cause of this. The technically illiterate judges are merely a reflection of the technically illiterate lawyer pool from which they're drawn. When I say start at the beginning... that's what I mean.

We need to start putting some technical types on the bench. Find them and put them on the bench. In parallel, we need to start recruiting the technical fields to law schools. It'd help the profession as a whole, even as it helped the courts. Courts are confronted with the need for such knowledge on a daily basis. Common knowledge. Common except within the legal profession.

It's a sin that somebody's crying out to put training wheels on judges, because they are struggling to perform the basic housekeeping and workaday matters required in cases involving matters technical. If they can't do their job, they're not qualified. Simple as that.

Your specialized court idea may have merit (although we practice some portion of that now I suspect), but it does not address the global problem here... the void within the legal profession as a whole. And it is a void. Gaping. Wide. Far reaching. Splayed. Vast.

It's big.
6.25.2009 4:35pm
rosetta's stones:

"The idea that any expert can be neutral is just silly."


Precisely. I know who I'm working for. So does the other guy. So will the court's guy (and all the various parties attempting to influence him or his selection will know as well).

And if either side is worried their case won't present well, better plan on firing up the settlement negotiations and git 'er done.

And if the judge is too stupid to keep up, then he should shut up and try to keep the playing field level as best he can, and not inject himself into the process with his "experts".
6.25.2009 4:46pm
levisbaby:

I talked about "nonpartisan" experts, not "neutral" experts, for a reason.

You're just playing word games.
6.25.2009 4:46pm

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