Friday, February 11, 2011
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.
And, as the recent opinion of the United States District Court for the District of Columbia in Carranza v. Fraas, 2011 WL 380164 (D.D.C. 2011), makes clear, judges uses Rule 706(a) to help themselves gain a better understanding of complex issues at trial, not to assist one of the litigating parties.In Fraas,
The plaintiffs [we]re female farmers who hired the defendant, attorney Phillip Fraas, to represent them in a civil rights discrimination claim against the United States Department of Agriculture ("USDA"). After settlement negotiations with the USDA failed, the plaintiffs commenced [an] action against the defendant for legal malpractice and breach of fiduciary duty, claiming that the defendant failed to exercise reasonable skill, care and diligence while representing them in their civil rights claim. The plaintiffs subsequently filed a motion requesting a court-appointed expert witness, which th[e] court denied.
The plaintiffs thereafter moved for reconsideration of that ruling. According to the United States District Court for the District of Columbia, the plaintiffs were, in effect, asking the court to appoint expert so that they could satisfy their burden on proving the standard of care that Fraas owed to them an violated. And, according to the court, such an argument did not support an expert appointment under Federal Rule of Evidence 706(a) because "[c]ourts do not...appoint expert witnesses for the purpose of assisting a litigating party." Instead, "[t]he decision to appoint an expert witness lies within the discretion of the court and 'is to be informed by such factors as the complexity of the matters to be determined and the fact-finder's need for a neutral, expert view.'"