April 2024:
The MLO Minute: “Experts Appointed by the Tribunal: An Underused Approach for Proper Adjudications”
By Dennis C. McAndrews, Esq., Founder and Managing Partner Emeritus —
In my 45 years as an attorney, I have been able to try every type of case – criminal, civil, administrative, federal, state, jury, and non-jury. I also served as a special education hearing officer adjudicating cases on a part-time basis for 15 years. These experiences allowed me to observe firsthand both the successes and failures of the adjudicative systems. At this stage of my career, I feel qualified to offer some solid reflections on how our fact-finding processes can be improved.
As our society has become more complex, the use of expert witnesses has expanded and is now in many, if not most, cases which appear in the administrative and judicial systems for independent fact-finding and a final decision. Naturally, where one side possesses expert witnesses, the opposing side feels the need, wherever feasible, to obtain an expert witness to support the contentions of that party. As a general rule, these experts are paid by the party retaining their services. Human nature being what it is, the opinions rendered by those experts, who are carefully chosen by counsel for their clients, reflects the viewpoint of the party having retained the expert services. The result is inevitably a “battle of the experts” where the factfinder must choose one or the other expert opinion, or some variation in between.
But our administrative and judicial systems allow for an additional, and (in my opinion) much underused, additional approach. For example, in special education matters, where my firm is extensively involved, the relevant federal regulations expressly permit a hearing officer to appoint an expert to evaluate the matter and provide a separate, fully independent opinion. This alternative is particularly important, useful, and fundamentally fair where a parent seeking an appropriate special education program for a son or daughter lacks the funds to obtain an expert to review the records, evaluate the matter, test the child, write a report, and then testify at a hearing. On the other hand, the school district or charter school in the case always possesses multiple teachers, therapists, psychologists, service providers, and administrators, all of whom are qualified as expert witnesses but who have their own inherent bias as they testify on behalf of their employer—the school system being challenged. This seldom-used regulation is itself difficult to find, but is located at 34 C. F. R. Section 300.502 (d).
This special education regulation is not an outlier in permitting a judicial factfinder to order an independent review of the matter by an expert to provide an opinion to the court. For example, Pennsylvania Rule of Evidence 706 permits the trial court to appoint an expert witness and call that witness to testify. The Federal Rules of Evidence are also explicit in this regard. Rule 706 provides that the court may appoint any expert of its own choosing with notice to the parties and call that witness to testify and be cross-examined. Rule 614 buttresses this provision by stating that a federal judge has the authority to call its own witnesses-expert or lay. As stated by the Pennsylvania Supreme Court in Commonwealth v. Safka in 2016, “the authority of the judge to call witnesses is well established…and the judge is not imprisoned within the case as made by the parties.”
At our firm, we always seek the best and most available manner to secure appropriate resolutions for our clients, and in appropriate cases we will not hesitate to ask a hearing officer or the court to consider appointing its own expert, especially where we feel that the rights of our clients and the opportunities for a full exposition of the merits of their case can best be advanced by such a request. We look forward to serving you and your family in our areas of expertise!
