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III. THE CIVIL LITIGATION PROCESS
A. INTRODUCTION
Our court system adjudicates both civil disputes and criminal prosecutions.
Because courts rarely appoint their own experts in criminal cases, this
discussion will be limited to civil litigation. (Note: often the terms court
and judge are used interchangeably. Thus, the statement "The court will
decide" means the same thing as "The judge will decide.") Civil litigation
occurs in both state and federal courts, but the vast majority of cases are
filed in state courts. The litigation process is governed by statutes and
rules adopted by legislatures and courts. While there are certain differences
between the process in state and federal courts, the basic elements are the
same. The purpose of this discussion is to introduce you to those elements.
Although most cases are resolved by settlement and never reach trial, those
cases that receive the most attention are those tried in a contentious
atmosphere. The American judicial system rests on the premise that the
interests of parties will be best served - and the truth most likely found -
through an adversarial process. This means that each party will be
represented by an attorney who will prepare and present that party's case as
effectively and vigorously as possible, with the judge playing an essentially
passive role, somewhat like an umpire. Although many other countries use a
system in which judges play a more active role in the litigation, including
making the final decision, our system developed in the context of ensuring
that all people can obtain a forceful presentation of their interests.
B. THE PRETRIAL PROCESS
Before discussing the pretrial process, it is important to stress again that
only about five percent of all civil cases filed ever get to trial.
Nevertheless, some of the stages discussed below are common to all cases,
even if they are settled or dismissed before trial. The following are
descriptions of the considerable activity that occurs before trial.
The complaint. A case begins with the filing of a complaint, a written
document in which a plaintiff states, generally quite briefly, the alleged
facts of his or her claim. In this complaint the plaintiff alleges some harm
that has been done to him or her. The complaint is filed in a court that has
jurisdiction of the case, that is, a plaintiff cannot simply file anywhere.
Jurisdiction refers to the court's authority to adjudicate a case.
Responsive pleadings. Once the complaint is filed, the defense has to
respond. It can file an answer in which it may deny what plaintiff claims and
may also raise certain legal defenses, such as that the complaint was filed
too late (called the "statute of limitations"). The complaint and the answer
(together called the pleadings) frame the dispute between the parties. The
defendant can also file a motion arguing that the court should dismiss the
case on a legal ground. Normally motions are decided by the court on the
basis of the papers filed by the parties and do not involve witnesses (though
they may require affidavits or declarations). There are many legal grounds
for filing motions. The most common motion is for summary judgment. Such a
motion asserts that there are no disputed issues of material fact and that,
given the law, the case can be decided by the judge without a trial on the
facts. The defendant may make such a motion where a legal rule bars
plaintiff's case or where the evidence is deficient in some critical respect.
The motion will be denied if the judge rejects the legal argument or finds
that the outcome depends on disputed facts that require a trial for decision.
Motions for summary judgment are more commonly made by defendants, but they
are available to plaintiffs as well.
Defining and narrowing issues. . As noted above, judges have begun to take a
more active role in managing litigation. In many courts, judges will hold
pretrial or status conferences early in the case, often in chambers - the
judge's office - rather than the courtroom. The judge, by examining the
pleadings and questioning the lawyers, will attempt to define the controversy
and narrow it by excluding matters that do not need to be decided or that can
be resolved by agreement. Increasingly, the matters in dispute involve
scientific or technical issues. In fact, these issues are often so important
that the outcome of the litigation rests on their resolution. The judge will
also chart the progress of the case by setting schedules for the various
events to occur, such as setting a trial date and a time limit on discovery
(see below) to ensure that the lawyers will prepare their case diligently.
Discovery. A major part of the pretrial process consists of discovery, i.e.,
the process by which the opposing parties obtain information from each other.
Discovery is conducted in a variety of ways: by interrogatories (written
questions calling for written answers); requests for the production of
documents (enabling the requesting party to inspect the desired documents);
and depositions (pretrial examination of parties or witnesses). Discovery is
important in the American legal system for several reasons. First, in order
to be advocates for their clients, lawyers need to prepare for trial by
access to information that is relevant to the issues in dispute. When this
information is not publicly available, the discovery process ensures that it
can be obtained by the opposing parties. Second, the discovery process
minimizes "surprises" at trial that can undermine both the fairness and the
efficiency of the adjudication process. Finally, through discovery the
parties can better assess the strengths and weaknesses of their case, thereby
promoting settlement rather than lengthy litigation.
C. COURT APPOINTED EXPERTS
The role of expert witnesses in litigation generally. Ordinarily, witnesses
are limited (under Federal Rule of Evidence 701) to testifying about facts:
what they know, experienced or observed. With some exceptions, they are not
permitted to express opinions. What distinguishes an expert witness is that
(under Federal Rule of Evidence 702) he or she is permitted to testify to
opinions on scientific, technical or other specialized matters if
1. The witness is qualified as an expert by knowledge, skill, experience,
training or education, and
2. Such knowledge will assist the court or jury to understand the evidence
and decide disputed facts. That is, the knowledge is relevant to the matter
under dispute.
Even if the expert meets these two criteria, a party may object to the
testimony on the ground that the opinions--and the bases for those opinions,
such as studies or experiments-are not sufficiently reliable to be admitted
at trial. In a case known as Daubert v. Merrell Dow Pharmaceuticals, Inc.,
the U.S. Supreme Court ruled that the judge must decide this question of
admissibility. The court will consider a series of factors, such as whether
the method used to reach the opinion has been confirmed by tests and
validated by peer review. If a judge rules that the evidence is not
sufficiently reliable, he or she will not allow the evidence to be admitted,
that is, a jury will not be presented with the evidence. When a judge makes
the determination to allow evidence to be admitted, it does not mean that the
judge necessarily finds that the evidence is convincing. It does mean that
the judge regards the evidence as sufficiently reliable to allow it to be
presented to a jury, which then makes the decision regarding the merits of
the evidence. The judge's role, as spelled out in Daubert, indicates that the
role of American trial judges has been evolving so that they play a much more
active role in the management of litigation than has traditionally been true.
Court appointment. While parties commonly will retain expert witnesses,
appointment of experts by the court has been the exception rather than the
rule. Whether such an appointment will be made will depend on whether the
judge, on the basis of what he or she has learned about the case during the
pretrial phase, feels the need for an independent expert. The court's
appointment, therefore, tends to come later rather than sooner in the
process. The main elements of Rule 706 of the Federal Rules of Evidence, the
authority judges usually use to appoint an expert are:
1.      The court may appoint an expert agreed on by the parties or one selected
by the court;
2.      The expert will not be appointed unless he or she consents to act;
3.      The court will give the expert a written statement of the expert's duties;
4.      If the expert makes findings, the expert is to advise the parties of those
findings;
5.      Any party may take the expert's deposition;
6.      The expert may be called by the court or any party to testify at trial and
will be subject to cross-examination; and
7.      The expert is entitled to compensation to be paid by the parties under
order of the court.
The terms under which an expert is appointed in any particular case will
probably be specified in a court order and may vary somewhat from the
specifics of Rule 706; the judge has certain inherent authority and is
therefore not bound strictly by the terms of the rule. It is important for
the expert to review a proposed order, be certain that he or she understands
it, and is satisfied to serve under it.
The functions of court appointed experts. Court appointed experts may perform
a number of different functions in litigation, including the following:
1. Serving as a trial witness: This is the traditional role of the expert
witness contemplated by Rule 706. Here the witness is called by the court to
testify to opinions in accordance with Rule 702, discussed above. When one of
the parties disagrees with the expert's opinion, that party will treat the
expert as an adverse witness. (In legal jargon, such witnesses are often
referred to as hostile witnesses.)
2. Serving as an adviser to the court: The court may call on the witness to
analyze the evidence and provide the court with expert advice on how to
assess it. For example, the expert may be asked to assist the judge in
determining the reliability of studies underlying proposed expert evidence
for the purpose of ruling on a motion under Daubert, discussed above. Or the
expert may be asked to perform tests or conduct studies helpful to the court
in understanding evidence. Whatever the expert does for the court will be
subject to examination by the parties in pre-trial depositions, and the
parties may also call the expert as a trial witness.
3. Mediating settlement discussions: Experts may be called on to assist the
parties in working out terms of settlement involving complex problems. An
example might be the settlement of an antitrust case requiring sophisticated
economic analysis of the consequences of various alternative remedies.
4. Facilitating comprehension of the evidence: Experts have been appointed to
provide a pretrial tutorial to the judge - and potentially also to the jury
after it has been selected - to give an objective explanation of the basic
elements of complex subject matter involved in the litigation.
Limitations and responsibilities. Two important limitations apply to the work
of the court appointed expert or special master. The first is that the
premise of the appointment is not simply that the person is qualified but
also that he or she is independent. Being independent does not mean that the
person lacks opinions and judgments about the matter in litigation - such a
person would not likely qualify as an expert. It does mean that the expert
will be indifferent to the outcome of the case and will call the shots fairly
without regard to how they may affect one party or the other.
The other limitation is that the person is called to provide expert services,
not a decision of the case. The expert's role is to facilitate the judge's
and or jury's understanding of complex evidence so that the fact finder may
arrive at a sound decision.
Because the court appointed expert is identified as an independent expert,
his or her opinions and judgments may carry special weight. In these
situations, juries may tend to discount opinions of party experts as biased.
This places a special responsibility on the court appointed expert to ensure
that, whether deliberately or inadvertently, his or her testimony or other
statements in the case do not put a thumb on one side of the scale of
justice. In other words, court appointed experts must remember that they have
been asked to give opinions on a certain scientific or technical matter, not
to decide who they think should win the case. The latter is a decision for
the jury (or sometimes the judge).
D. THE TRIAL
As noted, few cases go to trial; indeed, well over ninety percent are
disposed of by motion or settlement. Still, a court appointed expert may be
asked to testify at a trial and should be prepared for that possibility. Most
civil cases are tried by juries. In the federal system, the Seventh Amendment
creates a broad right to a jury trial and states generally grant a similar
right. The right to a trial by jury is a safeguard protecting basic human
liberties and is a hallmark of democracy in American justice. This fact
dominates the landscape of trials; it mandates a degree of formality that
might not be as prominent in cases where the judge alone is trying the case.
What follows is a brief description of a typical trial process.
Shortly before the trial, the court will hold a final pretrial conference and
issue an order that essentially lays out the game plan for the trial: listing
the parties' witnesses and exhibits, stating the principal issues to be
tried, and addressing some of the administrative and housekeeping details. On
the day of trial, a group of potential jurors, the venire, is brought into
the courtroom for jury selection. These potential jurors are drawn at random
from a database created from records of drivers licenses and voter
registrations in the area served by the court. As jurors' names are called,
each is examined briefly by the court and perhaps by the attorneys to
determine whether the juror can serve fairly and impartially. The attorneys
for each side are then permitted to challenge any juror for cause (i.e., an
appearance of partiality) and a certain number without regard to cause (these
are known as peremptory challenges). Eventually a jury is seated, composed of
anywhere from six to twelve plus one or two alternates (depending on the
jurisdiction and the anticipated length of the trial). The length of time
required to select a jury depends on the anticipated length of trial and on
how controversial the case; it may take a couple of hours or days.
After the jury is seated, the attorneys give their opening statements,
intended to outline what the evidence is expected to show. The plaintiff then
calls its witnesses for direct examination. The opposing party may raise
objections, either to testimony or to exhibits offered as evidence. The court
will decide whether to sustain (uphold) or overrule the objection under the
rules of evidence. Following the direct examination, defense counsel
cross-examines the witness. Cross-examination ordinarily is intended to
undermine a witness' direct testimony. The opposing attorney may try to
impeach a witness (attack his credibility) by showing that he said or wrote
something at some other time that contradicts his testimony. The attorney may
also attempt to deflect the impact of the direct testimony by bringing up
facts the expert had not considered in reaching his or her opinion, or he may
challenge the validity of or support for the expert's underlying assumptions.
More information about direct and cross-examination can be found in section
V(D).
Cases in which expert witnesses participate will be complex and likely will
involve issues foreign to the experience of the judge or juror. Helping the
jury to comprehend these issues is, therefore, extremely important. Judges
and lawyers will generally make some effort to further the jury's
comprehension by using tools such as visual aids, computer simulations and
summary exhibits. The expert witness should keep in mind that the members of
the jury may be completely unfamiliar not only with the technical or
scientific subject matter, but with the technical and scientific language, as
well. Experts should make an effort to present their testimony in a way that
the everyday citizen will understand.
At the end of the plaintiff's case, the defendant presents its witnesses and
they are cross-examined by plaintiff's counsel. At the conclusion of all the
evidence, the jury is instructed and the lawyers give their closing
arguments. Jury instructions are the way in which the court informs the jury
of the rules of law that control its decision. It is for the jury to decide
what the facts are from the evidence presented but they must apply the law as
the judge instructs them. Jury instructions can be quite technical and may
take anywhere from a half hour to several hours to read. They are based on
the statutes and appellate court decisions that declare the applicable law.
The lawyers will have prepared proposed instructions, and the court uses
these proposals in preparing its final version. Most judges will give the
jury a copy of the instructions for reference during their deliberations.
Eventually, the jury will return a verdict. To find for the plaintiff, the
jury must find that the plaintiff's case has been proven by a preponderance
of the evidence, i.e., that what plaintiff claims is more probably true than
not; this standard differs from criminal cases requiring proof beyond a
reasonable doubt for a conviction. In federal courts, the verdict must be
unanimous. In most state courts, three-quarters suffices. If the jury reports
itself unable to reach a verdict, the judge may give it some instructions to
try again. But if it fails, the judge will declare a mistrial and, unless the
parties settle, the case will be tried again.
The remainder of this handbook provides you with more detailed information on
your role as a court appointed expert.


CASE Experts Handbook Version 2.0 Copyright c January 2002 American
Association for the Advancement of Science 1200 New York Avenue, NW,
Washington, DC

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