When Should Judges Appoint Experts?: A Law and Economics Perspective

The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals placed federal judges in the role of “gatekeepers” empowered to evaluate the reliability of often complex expert testimony. Many judges, commentators, and legal scholars have argued that court-appointed experts can assist judges in appropriately carrying out their gatekeeping role. However, previous literature has not evaluated the role of court-appointed experts in a rigorous framework that considers the complex interaction of the incentives of expert witnesses, the impact of expert witnesses on the decision-making of the fact finder, and the knowledge of the judge. In this article, we provide such a framework for assessing the appropriate use of court-appointed experts. We demonstrate that the option to appoint court experts in the role of technical advisors helps lead to appropriate judicial outcomes. Further, we provide guidance on the circumstances in which judges should appoint experts and the frequency with which such appointments should occur