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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, February 16, 2010

No Expertise Required: United States District Court For The District Of Colorado Notes Lack Of Affirmative Obligation On Courts To Exercise Their Rule 706 Powers

Federal Rule of Evidence 706(a) provides that

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. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 

But when should a court appoint an expert witness? And is there any affirmative obligation on courts to exercise their Rule 706 powers? According to the United States District Court for the District of Colorado, the answer to the latter question is "not really."

The opinion in Nagim does not give us any of the facts of the case except for the fact that Ronald Nagim was acting pro se and that he made a motion that could have been construed as a request pursuant to Rule 706 for the court to appoint an “[e]xpert for Plaintiff's Credit Report.” According to the court, however, the problem for the plaintiff was that "Rule 706 provides no explicit instruction as to when an expert should be appointed by the Court." (The court cited Wright & Gold for the proposition that “[w]hile Rule 706 provides no standard for determining when to appoint an expert, the policy [of promoting accurate factfinding] underlying the provision supplies some guidance.”).

The court then noted that "[c]ourts have hesitated to find any affirmative obligation to exercise their Rule 706 power." According to the court, "[i]n the absence of 'complex scientific evidence or complex issues,' the circuit courts have held that a district court does not abuse its discretion in declining to appoint an expert pursuant to Rule 706."

The Court then found that

the issues in the case are not overly complex or scientific. It appears that both the Court and a jury would be able to understand the issues presented by Plaintiff's case without the assistance of a court-appointed expert.

Accordingly, the court denied the plaintiff's motion.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/02/706nagim-v-equifax-information-services-llcslip-copy-2010-wl-466757dcolo2010.html

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