The “Tri-Pellate” Lawyer: Bench Trials
Bench trials are common but rarely discussed in this column. These cases often involve complex, technical issues in which it becomes obvious as the case develops at trial that the judge needs to be better informed on an essential topic in the litigation. If this situation (amongst others) presents itself, a tri-pellate lawyer can offer up a rarely used solution to the judge: a court appointed expert witness.
Under Rule 706, Ariz. R. Evid., a judge may appoint an expert. That rule allows a court to appoint any expert so long as that person “consents to act.” The court may appoint such an expert on its own or by motion. The judge begins the appointment process by issuing an order to show cause why the appointment should not occur, and may allow the parties to submit nominations. Id. After choosing an expert to be appointed, the judge must inform the expert of his or her duties, but may do so either in writing or orally at a conference where the parties may participate. “Whether an expert is to be appointed is within the discretion of the trial judge.” State v. Chaney, 141 Ariz. 295, 308 (1984).
Once appointed, the expert is required to advise the parties of any findings he or she makes. The expert may also be deposed, called to testify, or cross-examined by any party. Rule 705, Ariz.R.Civ.P., which requires that an expert may be required to disclose the underlying facts or data of her opinion, applies to court-appointed experts. Downs v. Scheffler, 206 Ariz. 496, ¶ 21 (App. 2003). It follows, although no court has expressly held, that the rest of the procedures surrounding the admission of expert testimony would apply to court-appointed experts.
Court-appointed experts are “entitled to reasonable compensation” and such compensation is set by the appointing court. Unless there is a special provision for funds, court appointments are subject to availability of funds. The rule also allows the parties to agree to an alternate compensation scheme. Many of the few courts that have considered Rule 706 have done so in the context of indigent parties requesting that the court appoint an expert.
To date, few Arizona courts have considered the application of Rule 706. The Arizona Supreme Court has noted that Rule 706 “permits a judge . . . to appoint an expert” where that “judge believes there is a substantial possibility that a jury might be misled or fooled by plausible but very untrustworthy testimony from a dubious expert witness.” Logerquist v. McVey, 196 Ariz. 470, ¶ 60 (2000). The court reasoned that the availability of court-appointed experts under Rule 706 allowed a court to use an appointed expert in “an extraordinary situation” where a judge found an expert opinion highly suspect.
Appointment of an expert by the court is intuitively a departure from the adversarial process of presenting information for the resolution of disputes. “Justice”, however, seemingly weighs against limiting the trier’s inquiry to inadequate presentations by the parties. Court appointed experts are, and will likely remain, a rare and extraordinary event. Regardless, Rule 706 remains an important alternative source of authority to deal with some of the most demanding issues that arise in court.
This article is intended for litigators to consider issues from both a “trial” lawyer and “appellate” lawyer perspective, and not just one or the other. Hence, a “tri-pellate” lawyer perspective is encouraged.
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