EvidenceProf Blog

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

Sunday, March 21, 2010

Expert Advice: Seventh Circuit Notes That Judges Might Want To Appoint Experts In Fair Debt Collection Practices Cases

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.

As the Seventh Circuit noted in its recent opinion in DeKoven v. Plaza Associates, 2010 WL 938025 (7th Cir. 2010), judges "rarely exercise[]" their powers under this Rule and appoint their own experts, but they might want to consider doing so in Fair Debt Collection Practices Act cases.

In DeKoven, plaintiffs brought two closely related class action suits under the Fair Debt Collection Practices Act, claiming that the Plaza Associates debt-collection agency improperly sent them denning letters, i.e., letters of collection. Under the Fair Debt Collection Practices Act, "a debt collector can, if authorized by the creditor whom he is representing, make his initial offer a final one, he cannot pretend that it is final if it is not, in the hope that the debtor will think it final."  The letters sent to one of the plaintiffs, Doris DeKoven, stated that

“we have been authorized to offer you the opportunity to settle this account with a lump sum payment for 65% of the above balance due, which is equal to $2,459.22. This offer will be valid for a period of thirty-five (35) days from the date of this letter." 

The plaintiffs' expert conducted a survey

The survey staff interviewed 160 shoppers at a mall in a Chicago suburb. Half were shown the letter to Kubert; the other half-the members of the control group-were shown the letter minus the “valid for a period” and “satisfactory proof” paragraphs....

After the survey respondents read the letter (either the survey letter or the control letter, depending on which group a respondent had been placed in), they were first asked questions about the letter orally, then given orally two answers to choose between, and finally handed a card with the answers printed on it and asked to pick one of them. The cards also contained a third answer option, which had not been presented orally: "DON'T KNOW/NOT SURE." The critical question, asked of the respondents in both groups, was what the respondent thought would happen if he or she didn't accept the offer in the letter-would it be renewed or extended, or was this the last chance to get a discount off the balance owed?

Of the respondents in the survey group, 59 percent thought the offer was final, 26 percent thought that it would be renewed or extended, and 15 percent didn't know or weren't sure. The corresponding percentages in the control group were 24 percent, 10 percent, and  66 percent.

The district court, however, deemed this evidence inadmissible under Federal Rule of Evidence 702 because, inter alia, "the members of the control group may well have been confused by the omission from the cropped letter of any reference to a deadline."

The Seventh Circuit later affirmed and noted, inter alia, that

Suits under the Fair Debt Collection Practices Act have repeatedly come to grief because of flaws in the surveys conducted by the plaintiffs' experts....District judges may want to consider exercising the clearly authorized but rarely exercised option of appointing their own expert to conduct a survey in FDCPA cases....Judges can assure themselves of the expert's neutrality by (as in arbitration) asking the parties' own experts to nominate a third expert to be the court-appointed expert....A genuine neutral should be easy to find in the field of survey research because few survey researchers have settled views about debt collection.

The decision to appoint an expert is within the discretion of the trial judge, of course, and we merely invite consideration of the possibility of using this procedural device to improve judicial understanding of survey methodology. Although the judge is authorized to allocate the cost of the court-appointed expert between the parties, Fed.R.Evid. 706(b), we do not suggest that the defendant should be made to contribute to the cost of a survey conducted by the neutral expert, for in cases under the Fair Debt Collection Practices Act defendants rarely conduct their own surveys but are content to point out the deficiencies in plaintiffs' surveys. A survey conducted by a neutral is a possible alternative to the often unedifying spectacle of a battle of party-appointed experts.


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