United States: Are Court Appointed Experts Supposed to Try to Facilitate Settlement? If so, then when?

Last Updated: July 17 2013
Article by Eric S. Solotoff

Very often, Judges will appoint their own expert to assist with their resolution of the case.  Some times, a Judge will appoint their own experts right from the get go.  In a recent case, a judge appointed a custody, business valuation and employability expert at the first motion, even though the parties planned on getting their own experts. Other times, a judge will appoint their own expert when the partisan expert opinions are widely divergent.

The court rules clearly allow for expert appointments.  In fact, Rule 5:3-3 provides:

(a) Medical, Mental Health, and Social Experts. Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person's family. The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.

(b) Custody/Parenting Disputes. Mental health experts who perform parenting/custody evaluations shall conduct strictly non-partisan evaluations to arrive at their view of the child's best interests, regardless of who engages them. They should consider and include reference to criteria set forth in N.J.S.A. 9:2-4, as well as any other information or factors they believe pertinent to each case.

(c) Economic Experts. Whenever the court concludes that disposition of an economic issue will be assisted by expert opinion, it may in the same manner as provided in Paragraph (a) of this rule appoint an expert to appraise the value of any property or to report and recommend as to any other issue, and may further order any person or entity to produce documents or to make available for inspection any information or property, which is not privileged, that the court determines is necessary to aid the expert in rendering an opinion.

(d) Selection of Experts. Experts appointed hereunder may be selected by the mutual agreement of the parties or independently by the court. The court shall establish the scope of the expert's assignment in the order of appointment. Neither party shall be bound by the report of the expert so appointed.

(e) Investigation by Experts. Any expert appointed by the court shall be permitted to conduct an investigation independently to obtain information reasonable and necessary to complete his or her report from any source, and may make contact directly with any party from whom information is sought within the scope of the order of appointment. The parties shall be entitled to have their attorneys and/or experts present during any examination by a court appointed expert. The expert shall not communicate with the court except upon prior notice to the parties and their attorneys who shall be afforded an opportunity to be present and to be heard during any such communication between the expert and the court. A request for communication with the court may be informally conveyed by the expert by letter or telephonic means, whereafter further communications with the court, which may be conducted informally by conference or conference call, shall be done only with the participation of the parties and their counsel.

(f) Submission of Report. Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court's experts' reports, the reports of any other expert may be submitted by either party to the court and the other parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.

(g) Use of Evidence. An expert appointed by the court shall be subject to the same examination as a privately retained expert and the court shall not entertain any presumption in favor of the appointed expert's findings. Any finding or report by an expert appointed by the court may be entered into evidence upon the court's own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties.

(h) Use of Private Experts. Nothing in this rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of an expert by the court, on the same or similar issues.

The law is also very clear, as noted above, that even if the court appoints an expert, parties are entitled to get their own experts.  The law is also clear that a court's expert is entitled to no greater deference or weight then a party's expert.  Whether that is the case in practice, however, is another story.

Another question to ponder is whether the court appointed expert (or joint expert) for that matter, should get involved in settlement discussions.  If the answer is yes, and most would agree that it probably is yes, then when?  I posit this because of a number of recent cases where both custody experts and forensic accountants acted in settlement mode before their investigation were even done, much less issued a report.  In fact, it appeared as though the investigation was being done with settlement in mind, as opposed to trying to broker a settlement, after their report was done and all of the cards were on the table.  This lead me to wonder whether what they were doing was attempting to create "settlement anxiety" (something that I have previously blogged about on a few occasions, in the parties.

It is one thing if the expert was appointed, not as expert, but as mediator.  However, if someone has been appointed expert, it seems that unless the result is patently obvious, that until the investigation is complete and the expert has the ability to share a summary of the conclusions regarding custody, or financial schedules, that crafting their investigation toward a settlement is inconsistent with the initial purpose of their appointment.  Parties should have the benefit of the opinion if they are going to knowingly and voluntarily settle their case.  They shouldn't be forced to waive their right to a trial in fear of what the expert may say but rather, should be allowed to make a knowing decision once they know what the expert has concluded and why.

Once the conclusions are reached, acting in a way to facilitate settlement is not only appropriate, but likely welcome by the parties and the court.  Before that, if could improperly create settlement anxiety in the righteous or more pliable litigant, while improper benefiting the unreasonable one.  That is not the purpose of the appointment of a court appointed expert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Eric S. Solotoff
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