Earlier this year, renowned judge and legal scholar Richard Posner of the United States Court of Appeals for the Seventh Circuit published a two-part article in the legal journal, The Green Bag, entitled “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable.” In part I of this article Judge Posner made the case for federal judges to more regularly adopt the practice of appointing a neutral expert witness in trials involving complicated commercial and technological issues. This issue was brought back into the legal media cycle at the end of September when several federal judges, speaking at an event hosted by NYU Law’s Civil Jury Project, argued against this practice.
The idea of using a neutral court-appointed expert witness is not a new one. In fact, Judge Posner and others have been making this argument for over 20 years now, and Federal Rule of Evidence 706 specifically provides for it. Judge Posner argues that the practice has not caught on because the legal culture in the United States is too adversarial and views the judge as mainly an “arbiter of a contest—a drama, really—put on by the lawyers for the contending parties.” Proponents of the court-appointed expert argue that such an expert would serve to keep the “hired gun” experts of the parties honest before juries, and juries would be instructed that the neutral experts are not meant to be determinative.
However, judges opposing the practice worry that putting “neutral” experts in front of juries will taint the legal process as jurors could give extra weight to any expert the court has labeled as neutral, no matter what jury instruction is given. Whatever side the neutral expert falls on is given an unquestioned advantage over the other side. This may not seem like a problem to some; court-appointed experts are not hired guns, like attorneys—experts, so their opinions should be given extra reverence. However, just because an expert is appointed by the court does not necessarily mean that they are free from bias or flawed methodologies, and regardless of whether an attorney is able to successfully call into question that expert’s qualifications or the soundness of their theory, the expert will be somewhat protected by the fact that the court itself has appointed them.
This same principle applies in the litigation communications arena. Companies or individuals involved in high-profile litigation often want (or are forced) to make statements throughout litigation but especially at the end when some sort of resolution has been reached. The addition of a “neutral court-appointed expert’s opinion” would be a powerful tool for those whose side the expert has fallen on. It would provide validation and support for favorable jury verdicts (which can be painted as unreliable) and could also be used as proof of a verdict’s unreliability if a jury were to rule opposite of the neutral expert’s opinion, giving parties that have lost in litigation some positive news to tout.
Only time will tell if Judge Posner’s latest plea will result in any demonstrable increase in the appointment of neutral court-appointed experts, but if it does, litigation communicators will have a new tool in their toolbox to both use and defend against.