Compelling Experts to Testify: A Proposal
Marjorie Press Lindblom · The University of Chicago Law Review · 1977
A ProposalThere is no consensus among American courts as to when experts should be compelled to testify.'The various rules on compulsion of expert testimony have developed primarily in cases in which the experts were already involved in the litigation, either as observers of the underlying events or as expert witnesses employed by one of the parties.More recent cases, however, have involved experts whose connection to the litigation was more tenuous. 2When a party is convinced that a particular expert's testimony will be favorable, the litigant may seek that testimony without regard to the expert's willingness to testify.For example, a litigant might subpoena an unwilling expert who has previously expressed his opinion on a trial issue in a publication 3 or in a prior trial of a related matter.'A party may also wish to compel an expert to testify to his factual observations, in which case the expert's opinion would be irrelevant.'The variety of possible situations raises the question of whether trial courts at present are allowed sufficient flexibility to effect a fair compromise between the competing interests involved when a litigant seeks to compel an unwilling expert to testify.The purpose of this comment is to analyze these competingCases concerning compulsion of expert testimony are collected in Annot., 77 A.L.R.2d 1182 (1961).Several articles have discussed the approaches used by various states.The articles have focused primarily on expert witness fees.See, e.