Using Court-Appointed Experts
The Honorable Timothy Hillman *
Good Morning. Following Professor Park with Federal Rule 706 1 is like
following Drew Carey with a great business meeting. I will do my best. I
wanted to speak with you about something I think is very important, in
light of all the scientific information that we are being asked as courts to
digest. That is, consideration of courts and counsel in using Federal Rule
706,2 which allows for court-appointed experts. At the risk of being very
dry, I want to speak a little bit about the mechanics of Rule 706. 3 I also
want to talk about some practical uses of the rule, as well as some instanc-
es where I have considered its possible uses, although I have not personal-
ly used it. But, frankly, it's coming, and it's going to happen sooner, rather
than later.
The general authority for this Rule has long-standing effect; Professor
McCormack traces it back to the 14th Century. As long ago as 1962, how-
ever, our federal courts said that the court’s discretionary appointment of
an impartial expert, in this case, a medical expert, is an equitable and for-
ward-looking technique for promoting the fair trial of a lawsuit. It is now
well accepted that the trial judge is not a mere umpire at the trial. Indeed,
there may be circumstances in which he or she may have a duty to seek
impartial assistance in order to enlighten the jury and themselves, because
the issues have been confused by partisan presentation.
The courts have moved forward since 1962. The mechanics of Rule
7064 tell a lot about the ability of the court to use it, and the ability of
counsel to recommend it to the court. First of all, the court may have its
own motion, along with a motion of any party, to enter an order to show
cause for why an expert should not be appointed.5 The court may ask for
* Judge Hillman has been a Judge of the Massachusetts Superior Court in
Worcester since 1998. From 1991 to 1998, he was an Associate Justice and Presi d-
ing Justice in the Gardner District Court and the Presiding Justice in the Worcester
District Court. He has prior experience in private practice, the Worcester County
District Attorney’s Office, and as Town Counsel and City Solicitor. Judge Hillman
is a 1973 graduate of Suffolk University Law School. He received his bachelor’s
degree from Coe College in 1970. Judge Hillman currently teaches Law & Psychi-
atry at the Massachusetts School of Law.
1. FED. R. EVID. 706.
2. Id.
3. Id.
4. Id.
5. FED. R. EVID. 706(a).
587
588 NEW ENGLAND LAW REVIEW [Vol. 36:3
nominations.6 More importantly, the court may ask for a limitation on the
scope of the expert's particular ability, or for a particular focus on the areas
under which the court or the finders of fact need enlightenment. The Rule
also provides that the court must inform the expert and the parties, in writ-
ing, of the scope of their duties. Of course, this writing must be filed with
the clerk of the court.7 This process of narrowing down, shows the finders
of fact what the court specifically wants. Is it judicial touring? Does it do
anything for the jury? Is it some sort of camp order, or something along
those lines? A witness can be deposed by either party and can be called by
either party.8 A neat little part of Rule 706 says, when the rule is raised by
either party, the expert witness may be cross-examined.9 In other words,
the expert being called for an adverse party, under the rule, may be cross-
examined by different techniques. One of the problems with this practice
is addressed within the rule in as clear a method as possible. First, court-
appointed experts are paid from funds provided by law in criminal cases,
or in civil cases where somebody invokes a privilege. 10 In civil cases, you
have to wait to see what constitutes a privilege, and you may want to get a
court-appointed expert if there are funds available for indigents that may
be used. In civil cases, the cost of the expert is as the court directs, there-
after, designated as cost. The court may tell the finder of fact that the per-
son is an expert. For those of you who practice in Massachusetts, the Mas-
sachusetts Rule of Criminal Procedure 41, 11 allows for the appointment of
interpreters. It also puts the words "or expert" in the rule. 12 There are no
decided cases on it to date. When mental health competency issues exist,
the court has a responsibility regarding these issues, although this is not
spelled out in Rule 41.13 This is when court-appointed experts come into
play, even though we do not call them that. For those of you who practice
in Massachusetts, there is civil authority for such appointments. In basic
cases, the Superior Court judges have needed to buy supplies, such as tape
recorders. This example of the overall superintendent's powers of the
court is somehow dovetailed in the Rule 706 14 analysis. There is no Mas-
sachusetts ruling on Rule 706,15 however, its power is present, apparent,
and I see no problem with it.
6. Id.
7. Id.
8. Id.
9. FED. R. EVID. 706(a).
10. FED. R. EVID. 706(b).
11. MASS. R. CRIM. P. 41.
12. Id.
13. Id.
14. FED. R. EVID. 706.
15. Id.
2002] COURT-APPOINTED EXPERTS 589
Rule 706 has many uses.16 The use of this rule that bears the most scru-
tiny, and the greatest potential for use, is the use of court-appointed experts
as technical advisors to the court. 17 One example that demonstrates the
many potential uses of Rule 70618 deals with a particular patent selling
issue. In Worcester, there is a bio-medical center. As a result, there are
many bio-medical cases that arise. I currently have a dispute before me
over a settlement agreement on a nuclear transferred-derived cell. I have
no idea what a nuclear transferred-derived cell is. Frankly, the issue is
actually over the settlement agreement. At some point, however, I told the
court that I am going to have to learn what a nuclear transferred-derived
cell is. I think under certain appropriate circumstances, I have the power
to appoint an expert to explain what it is, and use the explanation in appli-
cation to the settlement agreement. Another use of a court appointed ex-
pert is as a judicial tutor on esoteric subjects, which dovetails with the last
use of Rule 706.19 Finally, the last use of the rule, with regard to court
appointed experts is with respect to witnesses. 20 When using the rule in
application to witnesses, you have to be careful.
We recently started trying these applications of Rule 706 21 in Worcester,
which are purported to be the first cases in the United States involving
such uses of the Rule. I do not know if I have any authority for this, other
than what the lawyers have told me, but we have a number of cases from
younger people who were hemophiliacs who were transfused in the early
1980s and mid-1970s with HIV-infected blood. Those cases are now com-
ing forward. The issues before the court are ones of informed consent, and
when the companies knew or should have known about the effect of the
blood. In addition, the lawyers were pretty good, and they did not just tell
me the authority of Rule 706,22 but on their own, they basically designated
the plaintiff's expert as the historical expert to explain the progression of
the disease. The expert went in, and as awful as it was, it was helpful to
the finder of fact, and it laid a foundation. Then, we were able to go back
and argue about who knew what, when and what they did. As a founda-
tion, it was very helpful. I do not know whether the plaintiff and the de-
fendant shared the expense of this expert, but they both agreed on having
the historical expert, and they both had their points that they wanted to get
from the expert. As a result, there was very little cross-examination. It
was mostly direct examination and it was very helpful.
16. Id.
17. FED. R. EVID. 706(a).
18. Id.
19. FED. R. EVID. 706.
20. Id.
21. Id.
22. Id.
590 NEW ENGLAND LAW REVIEW [Vol. 36:3
The problems: Problems are fairly common with Rule 706 23 and court-
appointed experts, which rely on the common law tradition against courts
getting involved in the fact-finding process. This way of thinking is tradi-
tional and long-standing. It is ingrained in the culture. But, times have
changed. In fact, when Judge Lauriat is here this afternoon, I hope he gets
into some innovations that he and the Superior Court have been doing. I
use the word "innovations" because I am almost ashamed to tell you that
they are only recently allowing jurors to take notes and ask questions dur-
ing trial. These are considered innovations in Massachusetts. The im-
portance of these new innovations like court-appointed experts and juror
note-taking is that we are now getting more and more involved in the fact-
finding process, in order to make sure that the jury is searching for and
reaching the truth. As mundane as that may sound, this is what they are
supposed to be doing. Jurors taking notes and asking questions is inevita-
ble, if we want jurors to be involved in this search for the truth. Judge
Lauriat has been a real pioneer, and I followed along in his lead. Our Su-
preme Court in Massachusetts has allowed juror questions, even in an as-
sault and battery with a dangerous weapon case, and there were nearly
forty questions asked.24
There are two problems. The first problem is the legitimate fear of ex-
parte communications. The second problem is the expense. It is obviously
expensive to ask an indigent plaintiff, or some plaintiff in a medical mal-
practice case or a criminal defendant, who does not have many resources,
to share in the expenses. Let me give you some brief examples. We re-
cently had an awful mess, involving a junkyard out in Gardner and the
issue over cleaning it up. The defendant was clearing in violation of a
zoning ordinance. The junkyard clearly needed to be cleaned up, and I
considered appointing a court-appointed expert to help the Court in decid-
ing what goes to the dump, what is good, what needs to go where and as-
sessing the cost. All of this information was successfully determined
through the use of the expert.
Court-appointed experts and asbestos litigation seem to be common too.
Judge Lobel has a session over in Middlesex devoted primarily to this type
of litigation, in which court appointed experts prove to be key players.
Complex medical cases also seem to lend themselves to the issue of court-
appointed experts. One very well known and lengthy litigation involved
breast implantations, in which the judge who consolidated and tried the
cases, used a detective used him well, and with approval of the federal
courts. Then, of course, there is the novel, scientific evidence that Profes-
23. Id.
24. See Commonwealth v. Burgos, 739 N.E.2d 717 (Table) Mass. App.
Ct., 2000. Dec. 8, 2000.
2002] COURT-APPOINTED EXPERTS 591
sor Park talked about. For example, the Genome Project in Worcester
dealing with bio-meds, and all of the scientific projects that go on in this
Commonwealth are perfect for using experts under Rule 706. 25 I strongly
urge you to consider this rule when practicing as attorneys. There is plenty
of foundation for it. I know I am going to consider using it, so you can
beat me to the punch and get brownie points if you suggest it yourself be-
fore the court. Let me just end with a comment from the Federal Rules on
Rule 70626: The practice of shopping for experts, the venality of some
experts, and the reluctance of many reputable experts to involve them-
selves in litigation, have been matters of deep concern. Though the con-
tention is made that the court appointed expert acquire an aura of infallibil-
ity to which they are not entitled, the trend is increasingly to provide for
their use. While experience indicates that actual appointment is a relative-
ly infrequent occurrence, the assumption may be made that the availability
of the procedure in itself decreases the need for resorting to it. The ever-
present possibility that the judge may appoint an expert in a given case
must inevitably exert a sobering effect on the expert witness of a party and
upon the person utilizing his services.27
Thank you.
25. FED. R. EVID. 706.
26. Id.
27. FED. R. EVID. 706 advisory committee notes.