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 The Green Bag

530 states contain similar provisions.

Neither

the federal nor any state constitution, so

far as I have examined the state consti tutions, expressly provides that a party may select his witnesses. On the contrary, the rules of evidence and the qualiﬁcations of witnesses are wholly under the control of the legislature. I believe that the legisla ture has full control over the subject of expert testimony, saving only to the defendant the right of confrontation in criminal cases." How, then, shall the state exercise its control over the subject of expert testimony? To begin with, the Continental plan which it is proposed partly to adapt to this country, whereby the selection of expert witnesses would be committed not to the parties but to the state, by means of proposed of’ﬁcial designation by the court of a list of eligible experts, would certainly be abortive in its operation. For every bill or statute which Justice Schoﬁeld has seen, he says, “contains the express provision that nothing in the

act shall preclude either party from summon ing and using other expert witnesses at the trial Until public opinion or legisla tive opinion shall be so changed as to make it possible to prohibit the selection of medical expert witnesses by the parties, there is no practical advantage in enacting statutes which provide for the appointment of experts by the court. The parties will go on select ing their own experts, and medical expert testimony will go on as it was before. If authority should be given to the court, as is given in the Michigan statute of 1905, and in proposed statutes in other states, to appoint experts on its own motion, and to call them as witnesses subject to cross examination, the result will be merely to

add a third class of experts to those selected by the parties, and to increase the number and possibly also the variety of medical expert opinions. The fact that the oﬁ‘icial board or list of medical experts cannot be made exclusive is a strong and practical reason against adopting the system of offi cial medical expert witnesses in the United States.H Justice

Schoﬁeld,

it

will

be

noticed,

assumes that the list of medical experts will not be made exclusive, even though he denies that the parties have any constitu tional right to call such witnesses as they choose. Yet he clearly considers the belief in the right so ﬁrmly established that the

practice cannot be so radically changed as to make the official board of experts exclu sive. He is opposed, however, to the plan of oﬁicially designated experts under any circumstances, for the following reasons:—

“(1) It is not probable that the most eminent physicians could be induced to accept appointment on a board or list of official medical experts. It would be as unreasonable to expect the leading physi cians to serve for the compensation which the court could award as to expect the leaders of the bar to sit as auditors or masters for the usual legal compensation of $15 per day. The result of establishing an ofﬁcial list of experts probably would be that they would not be equal in quality, on the whole, to those selected by the parties. (2) If a permanent board or list of medical experts should be established, the power of appoint ment ought not to be vested in the courts. The number of experts required would be considerable, the appointments would be valuable to some physicians, and the system would expose the judges to a kind of soli citation which would bode no good to the courts. (3) Neither the judges nor the officers of any branch of the government can be assumed to have special knowledge of the qualiﬁcations of physicians to serve as medical experts. "Finally, to my mind, the grand reason why we should not adopt the Continental system is that it would be giving up, in an important matter, the time-honored prin ciple of individual freedom which pervades and animates the old common law, and the

Anglo-American law as well. If an emi nent physician should be sued for malprac tice, he would surely deem it a great hardship if he could not select and present to the court in his defense the best medical experts whom he could obtain who would give testi mony in his behalf." So the control of medical expert testimony is not so much to be sought by regulating the mode of their selection, concludes Justice Schoﬁeld, as by regulating their compen station: “The compensation of medical expert wit nesses is probably of more importance than

the method of their selection.

Large fees,

and especially large contingent fees, depend ing upon the result of the litigation, cannot fail to have an inﬂuence upon the testimony of medical experts. Such fees are likely to