Do court experts need to agree to be appointed / summoned / subpoenaed?

Question

Court experts are special class of expert witnesses that are appointed / summoned / subpoenaed by the court — as opposed to being called by the parties. In New Zealand the procedure is set out in r 9.36 and the following rules. Court experts can be appointed both on an application by a party and on the court's own volition.

As explained in McGechan on Procedure:

The procedure has not been widely used, probably because it goes against the traditionally adversarial way in which litigation has been conducted: each party would rather bring along its own expert, hoping to discredit the other's expert in cross-examination, but ultimately leaving it to the Court to choose between them. Appointment of a single expert by the Court has the advantage of possibly resolving a significant issue without the need for any evidence at all.

(Interestingly, what a court expert tells is not considered evidence — unlike if it was a regular expert witness).

In nut shell, if a party wants the court to appoint a court expert, the party first needs to try to reach an agreement with the other parties on whom to appoint. Ultimately the court will decide who it will be (if anyone) from the list of candidates proposed by the parties.

What is vague to me is whether the expert has to agree to be appointed. In case of regular expert witnesses they obviously are free to appear or not. But is it he same with court experts? Can a party simply nominate experts they wish to hear and apply to the court for their appointment, without even contacting them beforehand? Or does the party need to obtain the proposed experts' consent first?

(Any jurisdiction with adversarial system.)

Answer 1

What is vague to me is whether the expert has to agree to be appointed. In case of regular expert witnesses they obviously are free to appear or not. But is it he same with court experts? Can a party simply nominate experts they wish to hear and apply to the court for their appointment, without even contacting them beforehand? Or does the party need to obtain the proposed experts' consent first?

In U.S. practice, the expert witness has to voluntarily accept the appointment and can say no and decline to accept the appointment, even if the expert witness is court appointed.

But generally, the expert doesn't necessarily have to be consulted or consent before being nominated to serve. If the proposed expert witness isn't consulted in advance, and if the court appointed expert witness then refuses to accept an appointment (e.g. due to a conflict of interest not known to the court, or due to ill health), then the court has to pick someone else.

Also, there are some expert witnesses (e.g. a county coroner, or a county surveyor, or state psychiatric hospital psychiatrist, or a public retirement system actuary) whom courts frequently appoint in certain kinds of cases (or may even be obligated to appoint) who are basically obligated as a part of what a public office held by that expert involves, to accept all appointments given to them in that field, absent a conflict of interest or logistical inability to perform the task due to exigent circumstances (e.g. their office was destroyed in a tornado).

The same is also true of many other kinds of court appointments, such as court appointments of special masters, investigators, receivers, and fiduciaries of trusts and estates (where many jurisdictions have an official called a "public administrator" who is required to accept such appointments in most cases).

One exception to the rule recognized in some U.S. jurisdictions, is that an attorney appointed by a court to serve as counsel for someone (usually a criminal defendant) does not always have the option of declining the appointment if able to do so and if the attorney does not have a conflict of interest.

Answer 2

Yes

new-south-wales

This is spelled out unequivocally in cl 31.46 of the Uniform Civil Procedure Rules:

A person must not be appointed as a court-appointed expert unless he or she consents to the appointment.

cl 31.37 has the exact same wording for party-appointed experts.

Criminal procedure has the same limits.

However, once they are appointed, they should be subpoenaed like any other witness. It’s profoundly embarrassing for council for their expert not to turn up and when the judge says “Why didn’t you subpoena them?” to have no good answer.