What to do when the limits of professional communication are exceeded?
Sascha Dalen Gilhuijs and Nico Keijser[1]
Translation of the article “Judicial experts under pressure,” Dalen Gilhuijs and Keijser, Expertise en Recht, 2022, vol. 3
Summary
Judicial experts [2][3] In the performance of their work, judicial experts have to deal with various litigating parties: with the appointing judge, magistrate, examining magistrate or administrative judge, with the court registry, with the lawyers and with the parties themselves. If necessary, fellow experts are involved, either as party experts or as experts appointed in the same case, in the context of necessary multidisciplinary research.
This article deals with uncomfortable to sometimes downright threatening contact between court experts and parties and their lawyers. It summarises some of the experiences we have gathered. The nature of these has led us to define this as a problem. We provide some suggestions for solutions or courses of action. We also invite you to report incidents from your practice to us. Depending on the number, nature, and content of the responses, we will consider a follow-up to this article.
General
The relationship between parties and experts is governed by laws and regulations, codes of conduct and various guidelines. Regulations for the expert examination procedure are laid down in the Code of Civil Procedure, the General Administrative Law Act and the Code of Criminal Procedure, depending, of course, on the legal field in which the expert is appointed. Codes of conduct apply: the Code of Conduct for Civil and Administrative Cases, the Code of Conduct for the Netherlands Register of Court Experts (for experts acting in criminal law), the Code of Conduct for Court Experts at the Administrative Law Division and the Code of Conduct for the Stichting Advisering Bestuursrechtspraak.[4] There are various guides: the Guide to experts in civil cases, the Guide to medical experts in administrative law cases and the Guide to experts in maritime civil cases. Guidance documents usually explain the legal rules, but also give instructions on how an expert should behave. All the aforementioned documents contain formal instructions and sometimes restrictions. In general, it can be said that these rules are formulated on the basis of the positive instruction. They often contain ‘obligations for the expert’ or give direction to the procedure or procedural acts. For many of the professionals acting as judicial experts, rules of conduct of their own professional organization also apply. [5][6] In the opinion of the authors, rules concerning the appointment of experts take precedence over the procedural rules of the professional organization. The professional’s rules of conduct always apply. [7][8]
The environment
The main point is that no contractual relationship arises between experts and parties to the dispute. Although in civil law the appointing court is referred to as ‘principal’, the prevailing doctrine is that this does not mean a principal within the meaning of contract law.
It is important that experts, when carrying out their work, recognise that they are doing so in an environment where the parties have a business dispute, where an administrative dispute needs to be resolved between a government agency and a company or citizen, or where an investigation is being carried out into (alleged) criminal activity. In all cases, a proper execution of the expert’s work is necessary. A poorly performed expert opinion and a correspondingly poor expert report in a civil dispute usually leads to financial damage. In criminal law, where freedom-restricting measures may be involved, the consequences appear to be more far-reaching, at least for individuals, who in this case are usually designated as suspects. The correct practice of the expert is necessary to ensure that there is and remains confidence in the administration of justice.
Interventions
In the situation of a dispute to be adjudicated by a court of law, it is evident that the parties will stand up for their own interests. With all the means at their disposal and that of counsel. For example, a judicial expert will have to learn to deal with the fact that he is being closely ‘watched’ with regard to the performance of his work. He can – must – be held to account by the parties if he does not follow the legal rules or rules of conduct or does not comply with the instructions in the applicable manual or the instructions given additionally in the appointment decision. After all, an incorrectly formed expert report, or one based on incorrect data, is unusable by the court. This does not benefit the parties.
This is usually done on the basis of normal business etiquette, supplemented by the generally accepted jargon. The fact that strong words are sometimes chosen is part of the process. After all, the parties have a dispute with each other. In a civil case, for example, this may manifest itself in a message from lawyer A, with a simultaneous copy to lawyer B: “I request the expert to explain why document … is not being discussed” or “I request the expert to discuss document …”. or “I request the expert to treat document a as business confidential”. Messages can also be more prescriptive in nature: “I demand that …”, “I advise you that you must …” or words to that effect. Such messages can be supplemented by a text such as: “I would like to point out to you now that failure to comply with this will lead to a disciplinary complaint being lodged by the client. Or “… the client will hold you liable in separate proceedings for the damage suffered.” More on these additions later.
It is up to the expert to respond appropriately to the messages given as examples above. The expert should not be touchy. After all, this is the environment in which he works. The expert is used to the fact that lawyers sometimes hit out at people linguistically. If it does not help the proceedings, it often satisfies the client.
Without specifically commenting on the instructions given by a lawyer, the expert can confirm, in positive terms, that he is familiar with the regulations and guidelines and that he will abide by them. At this stage, a threat of disciplinary action or liability is preferably ignored.
Conflicts are part of life
Conflicts are normal and are part of how people interact. In the vast majority of organisations, employees have to deal with conflicts, aggression and sometimes even violence. Citizens are not only more articulate, they also experience injustice, feel powerlessness and may therefore have a shorter fuse. Research conducted by TNO in 2018 shows that 200,000 employees in the Netherlands are affected by undesirable behaviour by customers, pupils, passengers, patients and so on. This mainly concerns conflict behaviour such as intimidation, physical violence and bullying. It also appears that 552,000 professionals would like additional measures from their employer against intimidation, aggression, and violence by customers.
In this article, we give an overview of experiences we have collected. There are no figures on the number of experts who experience conflicts, or on the number of conflicts experienced by an individual expert. Experts with years of experience indicate that they have never experienced it, while others indicate that they do so regularly. In the remainder of this article, we argue for including these experiences in the expert report so that they can be researched in due course.
Conflicts in the context of the work of the legal expert
The role of the judicial expert in legal proceedings may be decisive for the course or settlement of the dispute. The stakes in an administrative law procedure can be high. Will my physical disability that prevents me from working be recognised? Will the value of my property fall if this road is extended? Will I get a wind farm in my backyard? But in civil law too, emotions can run high, as can the amounts. Is my view of the contract seen as the right one? The individual interests of suspects and other parties involved in criminal cases are considerable. In these cases, both parties and their representatives can use all kinds of techniques to influence, disrupt or even intimidate the court expert.
| Disrupting the expert. A lawyer invited the expert who had produced an expert opinion that was disagreeable to his client – but very strong and factually correct – to a hearing. There, the lawyer asked a series of “clarifying questions”. The lawyer had gathered information in advance that the expert was strong in writing but less competent orally. By doing so, he confused the expert, which affected his credibility. |
It often starts with questioning the expertise of the expert.[9] This sometimes occurs during the expert examination, for example via social media, but also in communications with the expert. These expressions may vary from objectively presented negative remarks to coarse insults or even expressions that are inadmissible under criminal law. The parties may also display such behaviour in front of the judge at the hearing. It is noted that an expert only has “ing. ” before the name and no “ir”[10] . Or the CV is dug up and when a certain education is lacking, the expertise in this specific field is considered absent. This is an attempt to undermine the expertise of—as well as the person of—the expert, with the aim of influencing the judge’s opinion and/or upsetting the expert. The more information the expert gives in the disclosure statement[11], the more this risk arises.[12] Where the expertise is challenged at a hearing, an expert will always need to have a good rebuttal ready; this is part of the professional role of the expert at the hearing. The judge will intervene if the parties overstep the mark. If that does not happen, the expert can ask for it. He is present to inform the court and not to be subjected to cross-examination or to be attacked as a person.
On social media, it is especially wise to remain silent in such cases. However, if the criticism is (too) intimidating in tone, it is important to report this to the principal. In some cases, the negative statements may take on such a form that it may be necessary to take legal action.[13] Of course, the expert can also consider giving back his assignment. This will lead to a delay in the settlement of the dispute. For the expert, this may lead to discussion about payment for the work done up to that point.
Threat of disciplinary action or liability
Despite the advice that a threat of filing a disciplinary complaint or claiming liability by the client should preferably be ignored by the expert, it often happens. This can be at an early stage of the investigation. Even during the lawyer’s first contact with the expert, disciplinary complaints are sometimes threatened. For example, when the lawyer or client already anticipates the desired outcome of the expert report: “If the outcome of the investigation is not …, then …”. There are professionals who no longer want to act as experts. In sectors where filing a disciplinary complaint is relatively easy[14] , but the consequences for the expert are in any case that he/she spends months dealing with a complaint, they find it undesirable to expose themselves to this. As far as we know, this does not lead to shortages of experts in certain fields, but the development in itself can be called serious.
We are well aware that the possibility of filing a disciplinary complaint for an improperly functioning professional is a valuable tool. However, it should not be used during the judicial enquiry procedure. If, after exhausting all legal remedies, it turns out that a judicial expert has made mistakes for which he can be held accountable by virtue of his professional rules of conduct, a disciplinary complaint or liability action may be appropriate. As long as the legal dispute in which an expert has been appointed by a court is not decided in the last instance, a disciplinary judge should ideally declare the complainant inadmissible. The judgements of the disciplinary court and the (civil) court may conflict. For example, if the judge is convinced of the formally correct nature of the expert opinion drawn up, while at the same time the disciplinary judge considers the actions of the professional acting as an expert to be incorrect on professional grounds.
Negative comments on social media
It is common knowledge that social media are used to share both positive and negative experiences with “the whole world”. Here, we focus specifically on negative comments about expert examinations and experts. We note that, as far as we know, these statements are only made by parties who are dissatisfied with the outcome of the investigation that was conducted. [15]
There are cases in which parties publish parts of the expert report, or even the draft thereof, online.[16] Often this is done in such a way that the passage from the text is taken out of context and/or explained in a wrong way or with incorrect reasons. And all this before the lawyer has even had a chance to react to the draft, on the basis of which the expert might adjust his text. These messages are often accompanied by negative comments about the person of the expert. Likewise, there are examples where the negative statements were accompanied by the publication of addresses and film clips at that location. [17][18]
| – During a home visit, the resident locks the door after the experts have entered. – A party to a dispute shows his gun during an interview. – Threats are made that the expert can expect Yugoslavian slaves if he does not give positive advice for his case. |
Experts should not respond to such statements. They follow the procedure and give the parties the opportunity to respond to the draft expert report[19] and incorporate those reactions correctly into the definitive expert report. It will come as no surprise that statements made via social media can sometimes go so far that people feel unsafe. [20][21] Reporting these forms of threats to the client is sensible, but reporting them and making a report is also a possibility.
Recognise the behaviour you are facing
In order to be able to deal as effectively as possible with all forms of influencing behaviour in the context of the work of the legal expert, it is first of all important to recognise what behaviour is involved. We base this on the overview of forms of behaviour described by Caroline Koetsenruijter. [22][23] These forms fit in well with the various examples we have described above, in the sense that they are always a step further “over the line”.
Experts regularly encounter rational conflict behaviour in their work; you disagree with each other but there is still dialogue. The other person is open to the expert’s message and wants to be understood by the expert. A variant of this is frustrated conflict behaviour, which occurs occasionally in the work of a legal expert and can be recognised by anger or powerlessness. The behaviour is no longer primarily guided by reason but by emotions. The behaviour is not so much directed at the expert, but more at the rules, the event, the government, the other party, the person who caused the damage or suffering, and so on. Another variant is instrumental conflict behaviour. This behaviour does not stem from emotion, but the other party deliberately tries to put pressure on the expert to bend the outcome to his or her will. Disrupting” by putting the expert in a “small” or “incompetent” position is an example of this. It is also called manipulative or instrumental behaviour. The behaviour is used to achieve a goal: to win the case or to win on behalf of the client. This form of behaviour is also encountered as an expert. These types of behaviour are used by both parties and lawyers. Never forget that the “instrumental type” is trying to exercise power that it often does not possess and is only trying to put you under pressure. Remember that they need you in order to present their case properly to the court.
The last form is psychopathological conflict behaviour. This is behaviour that confused persons often exhibit. Although this does occur in the context of criminal law, it will not readily be directed at the expert. We assume that in other areas of law such behaviour hardly ever plays a role in the investigation to be conducted by the expert and will therefore not be considered.
De-escalation
In general, experts can deal with these forms of behaviour by using various de-escalation techniques.[24]
In rational conflict behaviour, the LSD approach works well:
- Listen
- Summarise
- Keep asking.
This is a skill that legal experts almost always use in their investigations, but it is particularly important when there is a hardening of the argument. The most important skill in conflict resolution is listening. And really good listening is difficult. We are easily distracted by noise or the slowness of the speaker, we already know what the other person is going to say or we want to say something ourselves. Yet we must force ourselves to listen well. Summarising gives order to the conversation and you can check whether you have understood correctly. It also gives the other person a feeling of having been heard and taken seriously. Asking more questions afterwards brings you to the heart of the matter and you show interest in the interest or the point of view of each party. These techniques are therefore not only useful for thorough fieldwork, but also have a de-escalating effect and can mitigate or even prevent conflict behaviour.
In frustrated conflict behaviour, where the emotions play a role, the HEV model is a workable tool for de-escalation.
- Recognise the emotion
- Acknowledge the emotion
- Explore the emotion
Listen carefully to the emotions and pay attention without talking yourself. When acknowledging the emotion, it helps to summarise what the party has said or to repeat the last sentence. It is effective to let the party know that you have really listened instead of convincing or contradicting them.
Instrumental manipulation regularly involves transgressive behaviour. By setting a boundary in time, the expert can show leading behaviour and is kindly clear to the other person. This has a de-escalating effect because the expert is crystal clear and gives the other person an instruction.
Example in 3 steps:
- Specifically name what the other person says or does that crosses a line: “I hear you say that I am lying”.
- Say what you think of the behaviour: “I don’t like that” or “I find that annoying”.
- Name what you want: “I want you to stop doing that”.
If this does not work, step 4 can still be used:
- Indicate the negative and positive consequences: “If you continue, this conversation will stop and I will report it to the court. If you stop, we can continue the conversation. The choice is yours”. Then implement this consistently if the party does not stop.
| In a case where a lawyer unfounded accused experts of lying, deliberately distorting facts and colluding with the other party, the expert’s employer confronted the lawyer. That conversation was recorded in a report and was given to the judge who had appointed the expert. |
What can (should) experts do?
Above all, experts themselves must be familiar with the requirements of acting as legal experts. They must be familiar with the applicable legal rules and guidelines. Their work is rightly under the magnifying glass of parties in dispute and their counsel.
Experts, given the environment in which they usually operate, may be more exposed than average to “warring factions” and they may be more exposed than average to opposition, negative attitudes and intimidation. If they are aware of this, it is already part of the solution. Recognise the behaviour, apply the right techniques and set limits to the actions of parties and lawyers who frustrate the expert examination or make it impossible to carry out the work (in advance). Experts can use peer review and intervision to gain more and better insight into incidents that should be regarded as negative treatment or intimidation. After all, failure to recognise impermissible influence by parties or lawyers is disastrous for establishing the truth in criminal law, but also for the proper administration of justice in civil and administrative law.
In cases where the negative treatment is inadmissible (or is deemed inadmissible by the expert), mentioning it in the expert report is mandatory.[25] The addition of a section “Procedural communication with the parties” to, for example, the chapter “Organisation of the investigation” or “Hearing both sides” seems the appropriate place to do this. [26][27] By doing so consistently, the judiciary may be able to examine this more closely in due course, in so far as the court finds (sufficient) reason to include a response in the judgment or ruling.
What can the reader do?
This article gives an overview of some experiences and of what is currently known to the authors on the situation in the Netherlands. We give some suggestions for solutions or courses of action.
We are curious to know whether you recognise the situations and invite you to share your experiences with us. Depending on the number, nature and content of the responses, we will consider a follow-up to this article. The reactions may lead to the initiation of further investigation. Please send your message to
[1] Sascha Dalen Gilhuijs is director of Stichting Advisering Bestuursrechtspraak (STAB). STAB advises the courts and the Administrative Jurisdiction Division on the technical aspects of disputes in the field of environmental law. She is a member of the Steering Committee and Executive Committee of the European Expertise & Expert Institute EEEI. Mr. Nico M. Keijser CDPO is LRGD registered judicial expert, he is Secretary of the National Register of Judicial Experts LRGD and Vice President of the European Expertise & Expert Institute EEEI (Paris).
[2] In this article, “independent experts appointed by an arbitral tribunal” is exclusively understood.
[3] Where “he” is used as a designation, a female expert is also meant.
[4] See https://www.lrgd.nl/nl-nl/LRGD/Publicaties/Diverse-publicaties
[5] For example, that of the Netherlands Institute of Chartered Accountants at https://www.nba.nl/tools/hra-2017/?folder=5791.
[6] For example, there are dozens of professional organisations in fields relevant to acting as legal experts. See for example https://www.lrgd.nl/beroepsorganisaties
[7] For example, the rules of conduct for medical practitioners apply in full when medical expert examinations are carried out.
[8] We will not go into the question of concurrence or conflict of conduct. That is worthy of a separate investigation.
[9] This example concerns administrative law. In civil law, the parties are allowed to express their views on the person of the expert prior to the appointment. If the parties do this properly, there can be no discussion of expertise at the outset. Negative statements do occur later in the investigation or after the draft expert opinion has been issued.
[10] Due to the confidentiality of documents, we cannot elaborate on this.
[11] A disclosure statement contains information about the person of the expert, his training, work experience and publications. See on this subject for example: “The expert. About registers and the Disclosure statement’, B.J. van Ettekoven, O&A 2016/53.
[12] This does not affect the importance of providing an adequate disclosure statement.
[13] In that case, initiating summary proceedings in order to demand the cessation and cessation of negative statements or insults seems the appropriate form. However serious these statements may be, it is better to wait until the Expert Statement is ready.
[14] For example: The court fees for filing a complaint with the Chamber of Accountants amount to only €70.00. (Article 11 Rules of Procedure). We are aware that there are more costs involved in filing a complaint.
[15] We refrain from giving examples so as not to provide a stage for these messages.
[16] Idem note 15.
[17] For example, an expert was recently subjected to an intimidating visit at his office address and at the (now former) LRGD branch office address, the film report of which was published as a ‘documentary’ on Twitter, accompanied by factually incorrect comments. This led to digital support from “unpleasant quarters”. The address has since been reported to the police for extra support in case of a report of trouble.
[18] See also note 21.
[19] In administrative law and civil law, in which a draft notice is usually prepared.
[20] See, for example, https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBOBR:2020:2626, in which an expert filed a report and was vindicated after a dissatisfied party published false negative reviews under various names.
[21] To combat this encroaching phenomenon of ‘doxing’, the sharing of private data to intimidate, a bill was introduced in July 2021 to make this a criminal offence.
[22] Caroline Koetsenruijter is a trainer, mediator and lawyer. She has authority in the field of conflict management and is author of the book ‘Jij moet je bek houden’ from 2020 and ‘Agressieparadijs’ from 2021 both published by S2Uitgevers.
[23] Based on “You should shut up”, Chapter 3 by Caroline Koetsenruijter
[24] Based on “You should shut up”, Chapter 4 by Caroline Koetsenruijter
[25] In civil law, for example, Article 3.4 of the Code of Conduct: “The expert shall immediately report in writing to the client any relevant influence or attempt to influence the performance of the commission, even if the influence or attempt emanates from the client. The expert shall include this report in the report.” For criminal law article II.4 “Report any significant (attempt to) influence the execution of your assignment.” For administrative law (at least the STAB) article E.2: “The expert shall report to his superior any undue influence or attempt to do so in the execution of the commission.”
[26] This reference in civil law when using the Model Expert Report.
[27] Preference is given to using the LRGD Model Expert Statement as published on the LRGD website. https://www.lrgd.nl/nl-nl/LRGD/Publicaties/Diverse-publicaties.
The explanation of this change by the LRGD is given in footnote 1 in that document.
