Extract from the final Eurexpertise report
All rights reserved EEEI © 2012
Contributing correspondent
- Vincent LAMANDA, First President of the Court of Cassation
Authors
- CNCEJ, France
- Alain NUEE, First President of the Versailles Court of Appeals (France)
Other administrative order
YES
I. Procedural rules in calling for an expert examination
I. 1) On the initiative of
The burden of evidence normally falls on the litigants, and the one requesting the discharge of an obligation to prove it. Conversely, the litigant who claims to be free must justify payment or the fact which led to the extinction of his obligation.
An expert examination can only be ordered on a fact if the litigant claiming this fact does not have enough evidence to prove it. It is not meant to address the shortcomings of a litigant in the taking of evidence, which means that the litigant requesting the examination must have previously made the effort of establishing evidence with facts which could be obtained through ordinary means.
The judge is free to decide on the advisability of ordering an expert examination. However, in some cases, the legislative authorities force the judge to call for investigation, either if the litigants request it or unilaterally.
I.2) Mandatory expert examinations
The judge can freely decide on the advisability of ordering an expert examination. However, in some cases, the legislative authorities force the judge to call for investigation, either if the litigants request it or unilaterally.
I. 3) Decision-maker
The judge
I.4) Is a pre-trial expert examination possible?
Yes, if before the beginning of the trial there is a legitimate reason to keep or establish factualevidence which could influence the outcome of the dispute, the judge may order a pre-trail investigation on a litigant’s request.
II. Choice and appointment of the expert(s)
II. 1) Register
Every year, the courts of appeal draw up registers of technicians who, due to their skills, may be appointed as experts. This registration is valid for five years.
Also, every year, the Court of Cassation draws up a register of legal experts of national reputation, aimed at trial judges.
II. 2) Oath
Yes, its validity is equal to the length of the registration.
A non-registered expert must take an oath when acting as an expert.
II. 3) Choice of the Expert
The expert is freely appointed by the judge who determines his mission just as freely. This expert can be a private individual or a civil servant.
The litigants are always free to present the report of a private expert which they have hired.
II. 4) Participation by the parties in the appointment process
NO
In practice, the judge alone appoints the expert but he can solicit the opinion of the litigants on the relevant specialty, the name of the potential expert and, if need be, the number of experts to appoint within a panel. Moreover, a draft of the mission is often suggested by one of the litigants.
II. 5) Nationality
Not important
II. 6) Recusal by the litigant parties
The experts can be recused by the litigants for the same reasons as judges:
1º If the expert or his spouse has a personal interest in the dispute;
2º If the expert or his spouse is creditor, debtor, heir, or donee to one of the parties;
3º If the expert or his spouse have family ties or are allied to one of the litigants or his spouse up to and including the fourth degree;
4º If there has been a trial or if there is an on-going trial between him or his spouse and one of the litigants or their spouses;
5º If he has already heard the case as a judge or arbitrator or if he has advised one of the litigants;
6º If the expert or his spouse is responsible for the administration of the property of one of the litigants;
7º If there is a subordination tie between the expert or his spouse and one of the litigants or their spouses;
8º If there is known friendship or enmity between the expert and one of the litigants.
II. 7) Expert’s withdrawal (refusal of a mission)
Yes, the expert does not have to explain his refusal.
II. 8) Possibility of adding another expert
In civil law, the expert can ask another expert to help him when the mission calls for a technician in a different specialty than his own.
II. 9) Possibility of being assisted by a colleague
Yes, he is responsible for them, and must mention their name in the report.
III. Definition of the expert’s mission
III. 1) Who determines the mission?
The judge
During the mission, the litigants can ask the court that the expert carry out certain research or hear certain individuals.
III. 2) Type of mission
Expert examinations, observations, consultations, etc.
IV. Progress of the expert’s mission
IV. 1) Judge supervision
The expert examination’s procedure is supervised by the judge, who ensures that the investigation goes smoothly, and can set deadlines and order necessary measures.
The litigants must help the investigation and the judge can draw conclusions from their refusal to communicate elements which the expert has asked to see.
This obligation, written down in the law, is sometimes confronted with legitimate obstacles such as professional secrecy, medical confidentiality, business confidentiality, etc.
IV. 2) Form of contradictory procedure
Mandatory and permanent
IV. 3) Participation in the hearing
The judge can ask the expert to give an oral presentation at the hearing.
V. Close of the expert examination
V. 1) Does conciliation put an end to the expert’s mission?
YES
V. 2) Form imposed on the report
Written
V. 3) Does the report put an end to the expert’s mission?
As a general rule, the expert’s mission comes to an end when he submits his written report and notifies the litigants of its existence. The end of his mission can be extended if there are additional inquiries to be carried out.
The judge may ask the expert to give an oral presentation at the hearing.
V. 4) Is there an imposed structure for the report?
NO
V. 5) Is a preliminary report mandatory?
No, however, the preliminary report is strongly recommended since the conclusions of the consensus conference have been known.
V. 6) Is the judge bound by the expert’s conclusions?
The judge is not bound by the observations and conclusions of the expert. Even though he chose to appoint the expert to clarify missing elements, he is not bound by this opinion, even if, in practice, judges usually follow the conclusions of the experts they have appointed. The reasons behind this is that the mission given to the expert by the judge is not a delegation of his jurisdictional authority. The magistrate only asks the technician to help him understand and gain knowledge about certain facts without relinquishing his power to rule. He is thus free to accept or not the conclusions and decides at his sole discretion on their objectivity, value and scope. Thus he must look in the expert’s report for all the elements of evidence which will help him establish his decision, without being bound by the findings of the report. He can follow them or deviate from them by relying on, for example, a second expert examination which was carried out unofficially by one of the litigants, or only take some of the conclusions into account.
V. 7) Possibility of a second opinion
YES
VI. Funding for the expert examination
VI. 1) Security-Payment
Yes, by the requesting litigant unless there is a specific reason for the decision
VI. 2) Determining the amount of payment due
By the judge
VI. 3) Possibility of additional payment
Yes, on the expert’s request, at the judge’s discretion.
VI. 4) Determining fees and costs
When experts are appointed by a judge, their fees, are set by this same judge depending on the investigations carried out, the respect of the deadlines agreed upon and the quality of the work presented. These fees are paid by the unsuccessful litigant in civil cases and by the State in criminal cases.
Private experts appointed by litigants are paid by them.
VI. 5) Possibility of contesting the fees
YES
VII. Expert liability within proceedings
VII. 1) Are there any laws governing expert examinations?
The rules relative to the progress of expert examinations are Articles 232 and following of the Code of Civil Procedure, Articles 156 and following of the Code of Criminal Procedure and Articles R.621 and following of the Code of Administrative Justice.
There is no regional or linguistic specificity to the expert examination, the Republic is one and indivisible and its official language is French.
VII. 2) Expert liability
Civil, fault-based common law
VII. 3) Mandatory insurance for the expert
No, but imposed by expert companies and the National Council.
VIII. The expert’s status
VIII. 1) Existence of selection criteria (accreditation)
Before registering an individual on an expert’s register, the courts of appeals take into account the opinion of commissions made up of magistrates and experts which assess the skills of the candidates. This assessment procedure is renewed every five years.
VIII. 2) Classification of skills
The expert register is drawn up by each court of appeal and has a reference to a general nomenclature of the areas of competence for each expert.
VIII. 3) Required qualifications
Yes, accreditation when the knowledge is certified
VIII. 4) Grant of accreditation
By the Court of appeal.
VIII. 5) Possibility of accrediting a legal person
A legal person can be appointed as expert
VIII. 6) f) Validity period for the accreditation
Two years for a first registration, then five years
VIII. 7) Regular assessment tests
When re-registering.
VIII. 8) Supervision of the expert’s mission
YES, quantitative
VIII. 9) Expert’s activity report
Each year, legal experts must send an activity report to the Court of appeal from which they depend.
VIII. 10) Code of ethics
Whether the expert is registered or not or whether or not he belongs to a regulated profession, the expert is subject to a general obligation of conscience, loyalty, objectivity and impartiality. He is also bound by professional secrecy. He must personally carry out his mission in the deadline set and answer to the judge who appointed him.
VIII. 11) Good practice
The expert must strictly abide by the trial’s guiding principles, first among which is the principle of contradictory procedure, which is part of the guarantee of a fair trial. This principle which asserts that a contradictory procedure happens before a decision is taken which could cause prejudice, means that the investigation proceedings are carried out in the presence of the litigants and their representatives, first summoned in good time so that the litigants can obtain all the documents or be informed of all the elements which helped found the technician’s opinion, so that they may present their observations and their evidence during this proceeding, so that they can receive the technician’s report and appendices and may discuss and contest the expert’s opinion.
VIII. 12) Possibility of penalties
There are five kinds of penalties which can be administrated if the technician fails in his obligations. Not observing his obligations can lead to the judge replacing him, reducing his fees, lead to disciplinary sanctions if he is an expert registered with a court of appeal or the Court of Cassation, the cancellation of his report and can engage his civil liability.
VIII. 13) Laws governing the expert’s status
The legal expert’s status is determined by Law n°71-498 of June 29 1971 and Decree n°2004-1463 of
December 23 2004.
There is no mandatory representation body.
The legal experts registered within a same court of appeal usually gather into associations and companies.
The National Council of Legal Expert companies is a private organisation which brings together the different expert companies and associations.
IX. Bibliography
Code of Civil Procedure
Code of Criminal Procedure
Code of Administrative Justice
F. ARBELLOT, F. DELBANO, D. LORIFERNE, JP. MARTIN, P. MATET, O. SALATI et V. VIGNEAU, sous la direction de T. MOUSSA. Droit de l’expertise collection Dalloz Action, 2008
Y. ARNOUX, Le recours à l’expert en matière pénale, Ed. PUF, Aix-Marseille 2004, préface G. DI MARINO
M. AYDALOT, L’expertise comptable judiciaire, 2ème éd. Revue par J. ROBIN, Presses Universitaires, 1962.
J. BEYNET et J.ROUSSEAU, Manuel pratique de l’expertise judiciaire, Ed. Journal des notaires et des avocats, 1986.
J. BOULEZ, Expertises judiciaires. Ed. Delmas, 14ème édition.
G. BOURGEOIS, P. JULIEN, M. ZAVARO, La pratique de l’expertise judiciaire, Ed. Litec, 1999.
C. DIAZ Guide des expertises judiciaires 2009/2010 » Dalloz, 1ère édition 2008.
D. DUPREY et R. GANDUR, L’expert et l’avocat dans l’expertise judiciaire en matière civile, guide des bons usages, Ed. Litec, 1995.
P. FEUILLET et F. THORIN, Guide pratique de l’expertise judiciaire, Ed. Litec, 1981.
M.A. FRISON-ROCHE et D. MAZEAUD, L’expertise, Ed. Dalloz, 1995.
J. HUREAU et D. POITOUT, L’expertise médicale en responsabilité médicale et en réparation d’un préjudice corporel, Masson, 3ème éd. 2010 mise à jour sous la direction du Professeur J. HUREAU.
O. LECLERC, Le juge et l’expert, contribution à l’étude des rapports entre le droit et la science, LGDJ, 2005.
MALLARD, ROUSSEL, HERTZOG, Traité formulaire de l’expertise judiciaire, Ed. Litec, 1955.
T. MOUSSA, Dictionnaire juridique de l’expertise en matière civile et pénale, Ed. Dalloz, 1983.
M. OLIVIER, De l’expertise civile et des experts, Ed. Berger Levrault, 1990.
RAVON, Traité théorique et juridique de l’expertise et de l’arbitrage, Ed. Ducher, 1898.
G. ROUSSEAU, P. de FONTBRESSIN, L’expert et l’expertise judiciaire en France, Ed. Bruylant, 2008.
M. ZAVARO, Questions d’experts, réponses de juges, Ed. Edilaix.
EXPERTS (revue de l’expertise) édition trimestrielle, 4 rue de la Paix 75002 Paris.
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Statistic elements on the number, value and cost of expert examinations
In civil law, 70 % of the expert examinations are ordered in summary proceedings and 17 % by provisional judgement by the trial judges. They are mainly decided in three types of litigation: contract law (41 %), liability law (25 %) and family law (18 %). Taken as a whole, civil expert examinations mainly cover the area of construction (40.6 %), and the field of medicine (35 %).
Every other civil expert examination costs less than 1 200 €.
The average cost is however higher: 2 174 €. One expert examination out of four costs between 300 and 530 €, whereas 7 % costs more than 3 000 €.
