A neutral expert where the party experts cancel out.
Esshaki Legal Media TeamCurrent as of February 2023
Courts have authority to appoint an expert of their own selection, and although
the power is used sparingly it is available in technically complex cases.
Procedure. The court may appoint on motion or on its own, must give the
parties an opportunity to comment on the nominee, must inform the expert of
their duties in writing, and must require the expert to advise the parties of
findings, sit for deposition, and be available for examination at trial by any
party.
Compensation fixed by the court and paid as it directs, commonly split
between the parties.
Effect on party experts. Appointment does not preclude them, and the jury
may be told the expert was appointed by the court — which gives the appointed
opinion considerable weight.
Where it is used. Valuation in owner disputes; scientific and engineering
questions; accounting reconstructions; and cases where the party experts differ
by orders of magnitude for reasons the court cannot resolve.
Party consent. Parties frequently agree on a neutral valuation or accounting
expert without a formal appointment, defining the scope, the materials, the
process for submissions, and whether the determination binds.
Practical judgment. A party with the stronger expert case usually resists;
one facing a battle of experts before a lay factfinder frequently benefits.