Managing the Managerial Expert
Ellen E. Deason | 1998 U. Ill. L. Rev.
While most lawyers think of court-appointed experts as witnesses, judges increasingly appoint experts for managerial roles. For instance, court-appointed experts evaluate pretrial discovery; they play key roles in encouraging settlements and helping judges decide whether or not those settlements should be approved; they determine complex damages; they advise judges on remedial orders and monitor compliance and implementation. Professor Deason analyzes the proliferation of court-appointed experts for these indispensable functions in the absence of any explicit authority or procedures for their appointment. She argues that the current Federal Rules of Evidence and Federal Rules of Civil Procedure do not contemplate managerial functions for court-appointed expert witnesses or special masters and hence their limitations on appointments and their procedures are inadequate. Moreover, the other source of appointment authority, inherent judicial power, has ambiguous boundaries and offers courts little guidance.
Thus, Professor Deason suggests the development of new appointment authority tailored to the legitimate needs of the courts for managerial assistance, designed to encourage the maximum effectiveness in the use of experts, and constructed to prevent unnecessary interference with party autonomy.
* Associate Professor, University of Illinois College of Law. B.A., Carleton College; M.S., Oregon State University; J.D., University of Michigan Law School.