Expert evidence in the civil courts in Italy
by Maria Grazia Cassia
Judge Court of Milan
STO component at the CSM
Having had the privilege and the honour to participate in the working group on “Training, Competence and Evaluation of Consultants”, within the project that led to the preparation of the “Guide on Good Practice for civil technical consultancy in the European Union (European Guide for Legal Expertise), I gladly accepted the invitation to summarize the current situation of technical consultancy in civil proceedings in Italy. I note that already under Roman Civil law Judges have often used the technical advice of experts (consilium and responsum) to advise on issues and that even today the role of Expert is one of the most interesting and controversial in the Courts process, working with the Judge in the search for the right solution.
In the Italian system, the most acute problem is that of limiting the time needed to define the judgment, to avoid the State being required to compensate the parties for delay and the violation of a reasonable duration for the trial. Since in practice the longest trials are often those in which the Judge makes use of an Expert (ex officio or at the request of either party) with the reform of the Civil Process in 2009, rules were introduced to rationalize and reduce the time taken to carry out activities related to technical advice. It must be considered that the introduction of these rules to regulate in more stringent terms the conduct of the Expert consultation have brought benefits in valuing the contribution of the Expert, who takes on a significant role in the search for the amicable settlement of the dispute.
The Italian legislation, in order to deflate the dispute, also wanted to enhance the Expert’s contribution in all those processes where technical assessment is the central aspect of the dispute. The new rules introduced simplified procedures focused on technical advice, so as to offer the parties the basis for the amicable settlement of the dispute, or in any case to obtain, as quickly as possible, a final decision on a given involuntary situation a technical assessment (preventive technical assessments with the aim of conciliation or status assessment for the purpose of the recognition of social security or welfare rights).
The question of the choice of the Expert is also central, given the obligation for the Judge to use Experts enrolled in special registers and to ensure the rotation of positions. The necessity of rotation of the subjects enrolled in the appropriate lists does not always reconcile with the Judge’s need to be supported by a truly Expert and trustworthy person.
However, this is a matter in which it is necessary to seek the right balance, since there is a need, on the one hand, to ensure fair compensation for the Court’s auxiliaries, who often require specific training and preparation. This is justified or the Expert only if it can be expressed in a certain number of annual assignments. On the other hand to ensure transparency in assignments, the proper preparation of Experts and Experts and also avoid the formation of centres of interest and monopoly situations in certain areas and sectors, which is a danger position for any Judicial office.
The vigilance required from a Judicial ethical and professional point of view must be always high, as can be demonstrated by the recent legislative decree that in May 2018 introduced new provisions in the Code of Anti-Mafia laws, in order to avoid the assignment of tasks to Experts who are related to Judges operating in Judicial office, or who are linked to them by stable relationships as friends and other contacts.