The Use of Court Appointed Experts and Masters in Civil Cases, 0117 COBJ, Vol. 46 No. 1 Pg. 25
| Author | Terry Fox, Melissa L. Romero, J. |
The Civil Litigator
Terry Fox, Melissa L. Romero, J.
The Use of Court Appointed Experts and Masters in Civil Cases
This article considers the use of court appointed experts and masters as tools to facilitate access to justice in civil cases.
Judges are charged with administering the “just, speedy, and inexpensive determination of every action.”1 Yet in many cases the determination is costly and slow to arrive. A growing body of evidence suggests that our civil justice system remains inaccessible to many disadvantaged groups.2 As Colorado’s Access to Justice Commission announced in 2008: “Colorado faces a serious crisis in civil legal representation of the indigent.”3 Six years later, a 2014 report concluded that the crisis is no less severe.4
Low-income and modest-means litigants who succeed in obtaining counsel face additional obstacles when they find it necessary to hire experts to fully present a claim or defense. When each party hires an expert, as is common in the United States, each side’s limited resources can be rapidly depleted, making the promise of equal justice under law all the more elusive. By using court appointed experts or masters, courts can greatly level the legal playing field for low-income and modest-means litigants. Often, experts and masters may perform similar functions. The fundamental differences are the mechanisms by which the court exercises its authority under CRE 706, for experts, and under CRCP 53, for masters.
Benefits of Court Appointed Experts and Masters
Court appointed experts can reduce the costs of litigation because the parties typically share the cost of a single court appointed expert. This saves time and eliminates expenses resulting from multiple battling experts. Experts, and particularly masters, can also help manage litigation more efficiently,5 and involving experts may increase the likelihood of a stipulation.
In Daubert v. Merrell Dow Pharmaceuticals, Inc.[6] the U.S. Supreme Court made reference to the use of court appointed experts to assist the court, noting that “[Colorado Rule of Evidence] 706 allows the court at its discretion to procure the assistance of an expert of its own choosing.”7 And, just a few years later, in General Electric Co. v. Joiner,8 Justice Breyer’s concurring opinion agreed that a judge may be better able to “fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority . . . to appoint experts.”9
Even before the Supreme Court referenced court appointed experts in Daubert and Joiner, federal cases had recognized, or upheld, the inherent power of a trial court to appoint an impartial expert witness.10
Court Appointed Experts Versus Masters
Colorado, like the federal system, allows courts to appoint experts and masters to help resolve complex issues.11 Experts are individuals called upon to provide specialized expertise—often, but not always, of a technical nature —to enable the fact-finder, whether the court or the jury, to make a more informed decision. A master can serve a similar function, and may be a lawyer directed to undertake a specific component in litigation. The roles and responsibilities of experts and masters are outlined in CRE 706(a) and CRCP 53(c), respectively. The rule under which the court appoints an individual to provide certain expertise or to undertake a specific task or tasks largely determines whether the individual is an expert or a master.
Masters, like court appointed experts, are useful in cases that involve issues outside the expertise of the trial court. CRCP 53(a) explicitly states that a master “includes a referee, an auditor, and an examiner.” When dealing with difficult scientific or technical matters that are central to the outcome of a case, however, the parties may prefer the appointment of an expert by the court, because court appointed experts are subject to cross-examination and challenge like any other expert.12 Conversely, a master’s findings are less susceptible to attack by a party who wishes to contest those findings.
When Should Courts Appoint Experts and Masters?
Courts have discretion to appoint an expert or a master in any case involving complex issues or complicated facts.
Colorado courts can appoint an expert when a case would benefit from certain expertise.13 For example, a court appointed expert can make a substantial difference in helping the court divide complex retirement assets in a divorce, evaluate a small family-owned business, resolve a small entrepreneur’s technical dispute, or decide other complex cases brought by or against low-income or modest-means litigants. Experts may be useful even in cases involving a small amount in controversy or with relatively few disputes, especially where one or both parties have limited means.
The usefulness of court appointed experts must be evaluated on a case-by-case basis. The court should not use its limited judicial resources to try to force a one-size-fits-all solution on every case. A court appointed expert may not be helpful (or realistic) in cases where only the dueling expert dynamic will work and where the parties have the resources to battle it out. For example, in professional malpractice cases, it is nearly inconceivable that using a court appointed expert would lead to a faster, a better, or even any resolution. Professionals accused of malpractice—such as doctors, lawyers, accountants, or other specialists—are unlikely to agree to allow the court to use a single court appointed expert. Most professionals want their own expert-advocate, regardless of whether the court desires a neutral expert to explain the medical issues or scientific complexities in the case. In such situations, adding a court appointed expert would introduce another opinion that could raise additional i ssues, rather than streamline the dispute. This becomes critical in states like Florida, where physicians face loss of their medical license when found to have committed malpractice a specified number of times. And in many cases, the parties’ resources allow them to hire multiple competing experts. These are not cases where using the civil or evidence rules to reduce the number of experts and the expenditures associated therewith is desirable or even appropriate.
Pursuant to CRCP 53, a court could appoint a master in any of the above situations. Masters can be (and have been) appointed to resolve discovery disputes or address other issues that are an impediment to moving the case forward.
Procedures for Appointment
In cases where it may be appropriate, the court does not need to wait for either party to request a court appointed expert or master, but can initiate the appointment on its own when the circumstances warrant it.14 The court appoints an expert or a master by issuing an order of reference, which delineates the expert’s or the master’s powers and the scope of the appointment.15
The following limits, however, constrain the court’s power:
• “Reference under CRCP. 53(b) should be the exception, not the rule. Calendar congestion, complex issues of fact and law, and lengthy trial time do not offer the exceptional circumstances necessary for reference. Nor does the mere fact that an accounting may be necessary, unless it is beyond the competence of the court. Even then, the court should first hear and determine what issues it can, before making a reference of the remainder. Only then has the judge fulfilled his constitutional responsibilities and avoided possible prejudice to the litigants.”[16]
• The court sets the compensation to be paid to the expert or master.17 However, an expert or master may not receive a contingent fee because, like any expert witness, the master may thereby be improperly motivated with respect to his compensation and thus lose objectivity.[18]
• Parties may...
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