Hospital Corporation of America and Subsidiaries - Page 50

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          owes a fiduciary duty to the court and to the public.  Estate of            
          Halas v. Commissioner, 94 T.C. 570, 578 (1990).  An appraiser is            
          barred from presenting facts in a biased manner calculated to be            
          favorable to the client's position.  Id.  Experts who author                
          appraisal and valuation reports, moreover, serve as advisers to             
          the courts.  See Fed. R. Evid. 702; Estate of Williams v.                   
          Commissioner, 256 F.2d 217, 219 (9th Cir. 1958), affg. T.C. Memo.           
          1956-239.  The appraiser's duty to the court exceeds any duty               
          owed the client.  Estate of Halas v. Commissioner, supra.  An               
          independent appraiser, therefore, could not subject himself or              
          herself to the control of the client, as an agent must do, and              
          still fulfill his or her duty to the court and to the public.               
          Accord Kirk v. Raymark Indus., Inc., 61 F.3d 147, 163-164 (3d               
          Cir. 1995) (expert witness generally would not be agent of client           
          because an expert normally would not agree to be subject to the             
          client's control with respect to consultation and testimony);               
          Taylor v. Kohli, 642 N.E. 2d 467, 468-469 (Ill. 1994) (generally,           
          the client can influence but not control an expert's thought                
          processes).  Compare 1 Restatement, supra sec. 14N, comment a               
          (Independent contractor as an agent) with id. comment b (Non-               
          agent independent contractor).  Moreover, we believe that an                
          agent appraiser must have to act as an advocate of the                      
          principal's position to fulfill the fiduciary duty an agent owes            
          his or her principal.  Such advocacy, however, is contrary to the           
          duty owed the court and the public in general and precludes the             
          assistance of the expert at trial.  The Tax Court, in fact, has             



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