On 15 February 2019, a symposium organised by the Institute of Private Law of the University of Toulouse 1 Capitole and the Manuel Serra Dominguez Foundation brought together French and Spanish lawyers.

This conference, entitled “Franco-Spanish cross-fertilization of civil and commercial expertise”, enabled the speakers to make rich and varied contributions to expertise in France and Spain, particularly cross-border expertise.

Ms Deshayes, co-president of the European Institute of Expertise and Expert, chaired the round table “L´expert and the parties”, which aimed to determine How to prepare and produce good expertise before the courts.

We present below a summary of the interventions of Mr Bernard Bouyge, expert at the Toulouse Court of Appeal, Mr Rafael Orellana, abogado and judicial expert, president of the Catalan Association of Justice Experts (Barcelona, Spain) and Mr Laurent Posocco, lecturer in Private Law at the University of Toulouse 1 Capitole.

How to prepare and produce good expertise before the courts

by Mr. Bernard Bouyge

Bernard Bouyge
Bernard Bouyge

As the judge’s expert

The mission

For an engineer like myself, an expertise is a project to be carried out. This project is called a mission. It is a matter of technically explaining a dispute, by answering questions about it.

The mission entrusted is structured by a list of questions. These questions are initiated by the parties and written by the magistrate.

The relevance of the questions asked may not be optimal (copy and paste effect, standard missions), but this subject is discussed with the parties during the first expert meeting; if this is not the case, the expert judge is asked. In professional life, this phase can be considered as a project review.

The whole is therefore a clear and coherent mission.

The difficulties

A first difficulty is the number of parties and participants, especially during disorder observation visits, among other things because the parties and their counsel want the expert on the origin of the disorders they are observing…A difficulty with a professional project is the speed of execution, in other words the time required to complete the expertise. The expert’s ability to move forward is slowed down by all the delays: delays in convening the parties, delays in producing the requested documents, delays in setting up additional consignments necessary for investigations. Time limits over which the expert has no control.

Another difficulty is the late appeal of parties, which delays the expertise operations.

However, this relative slowness is not only a disadvantage: it allows ideas to mature.

A good expertise

It is the one that, in my opinion, leads to an agreement between the parties without going before the trial judge because its outcome is considered implacable, and therefore the parties are convinced.

In conclusion, the expertise as practised in France (and I have not addressed the questions of contradictory, impartiality, absence of conflict of interest, which govern the expert’s mission, because they are supposed to be respected and essential for a fair trial) seems to me to be effective.

Expert of parties

In France

I sometimes advise parties in legal appraisals carried out in France.

In this case, the mission entrusted to me is never contractually defined. I only accept purely technical assignments and try to provide the party’s lawyer with the technical explanations necessary for his action. I also give my objective technical opinion on the dispute.

In this type of mission, the expert retains his or her freedom.

Abroad

I have been a witness expert in an arbitration before the ICC of Singapore, the applicable laws being that of Singapore. The financial stakes were high.

The party for which I was intervening had a team of 4 senior lawyers, 2 junior lawyers also being mobilized.

My participation has been through an appointment, by the defendant’s law firm, as an Independent Technical Engineering Expert, with a contractual commitment of independence, impartiality and absence of conflict of interest.

My assignment was to prepare an independent expert report providing my opinion on the design and/or construction issues raised by the applicant.

He was recalled in my commitment:

My report was prepared to answer specific questions asked by my client’s lawyer.

This report was based on an analysis of written documents, including the testimonies of stakeholders. No visit of the structure, no meeting with the construction workers.

Then came the one-day testimony phase, which pitted experts from both sides against each other:

  • Initial presentation by the expert
  • Questions from the Tribunal
  • Cross-questions from lawyers
  • Real-time typing
  • Immediate signature of the testimony.

I had only a very limited knowledge of the general context of the trial. I had only a very fragmented view of the dispute. I have no idea what the verdict was.

If the expertise for the parties, in this context, is much more remunerative for the expert, for the experience I have, the autonomy of the expert is, in this situation, limited by the lawyer, and the expert is in a way, a pawn.

 Spanish laws and practices

by Mr. Rafael Orellana

Rafa OrellanaArticle 340. Requirements for experts

  1. The experts must have the official diploma corresponding to the
    the subject matter, purpose of the report, and the nature of the report. In the case of materials which are not part of official professional diplomas, they must be appointed from among persons with knowledge in these subjects.
  2. Thus, reports may be requested from Academies and institutions
    cultural and scientific personnel involved in the study of subjects
    corresponding to the purpose of the expertise. Legal persons legally
    qualified for this purpose may also issue expert reports on
    specific questions.
  3. In the cases of the previous paragraph, the institution responsible for the report will have to decide as soon as possible which one or more who will be directly responsible for preparing it. It will be to them required the oath or promise provided for in the second paragraph of Article 335.

Article 336 LEC – Contribution of reports prepared by experts appointed by the parties with the claim and counterclaim

  1. The reports available to litigants, prepared by experts appointed by them, which they consider necessary and desirable for the defence of their rights, shall be attached to the claim or counterclaim.
  2. The reports shall be drafted and accompanied, where appropriate, by other appropriate documents, instruments or materials to explain the expert’s opinion on what has been the subject of his expertise. The report should provide sufficient information on these material facts and instruments if it is not possible or desirable to attach them. Similarly, the report may be accompanied by such documents as are considered appropriate for a more accurate assessment..
  3. It will be accepted that the applicant may attach to his application written expert reports drawn up by an expert appointed by himself, if he does not clearly demonstrate that the defence of his rights has not made it possible to delay the submission of the said application until the report is obtained.
  4. If the defendant cannot submit his expert reports with his counterclaim, he must justify the impossibility of obtaining them within the time limit for contesting.
  5. At the request of the parties, the Tribunal may allow the defendant to examine, through the lawyer or expert, the state or circumstances of the objects or places that are relevant to his defence or to prepare the expert reports he claims to submit. Also, in the case of bodily injury complaints, the Tribunal may order the plaintiff so that a doctor (optional) can prepare his report..

On the expert reports

Article 335 LEC – Purpose and objective of the expert report. Oath or promise to act objectively

  1. When scientific, artistic, technical or practical knowledge is necessary to assess relevant facts or circumstances in the case or to obtain certainty about them, the parties may attach to the proceedings a report prepared by experts with corresponding knowledge or, in cases provided for by law, request a report prepared by an expert appointed by the court.
  2. When presenting his report, any expert shall swear under oath or promise that he will tell the full truth, that he has acted or will act, where appropriate, with the greatest possible objectivity, taking into account both what might favour one of the parties and what might prejudice them, and that he knows the criminal sanctions he could incur if he does not fulfil his duty as an expert.
  3. Unless otherwise agreed by the parties, it is prohibited to request a report from an expert who has been involved in mediation or arbitration related to the same subject matter.

What are the criteria that the lawyer must take into account when choosing an expert:

  • Full CV
  • Sufficient and/or specific professional skills
  • Continuing education. Published articles?
  • Experience in his field and also as an expert before the Courts
  • Know the limits of your intervention and your task. Relations with the lawyer and the Court
  • Good oral and written expression skills. Consistency between the written report and its defence during the oral proceedings.
  • Be able to write a report (AENOR UNE 197001:2011 Standard: “General rules for the preparation of expert reports” of 23 March 2011)
  • Fees (free?).

Mr. Posocco, comparing expert practices in the two countries, concluded by asking about the advantages and disadvantages of each of the two systems.

Unilateral expertise in Spanish law: the French lawyer’s questions

by Mr. Laurent Posocco

Laurent Posocco
Laurent Posocco

The question arises as to how to prepare an expertise. In reality, the use of unilateral and private expertise as a preparatory step for a judicial expertise is not unknown in France. Sometimes a party uses an expert to assess the desirability of a trial, settlement, acquiescence or silence. However, our unilateral private expertise does not have the same characteristics as expertise under Spanish law. However, the Iberian system is of the greatest interest. He succeeds in organizing the individual initiative of the litigant, in supervising him, in giving him a set of rules that certainly makes it less unofficial. Indeed, the expertise has long since ceased to be merely a parenthesis of the trial and the proceedings. It is undoubtedly the essential moment of the trial.

Two questions therefore arise:

  • On the one hand, could the Spanish procedure be imported into our Code of Civil Procedure? Under French law, the parties’ obligations towards the expert are a priori identical whether the expertise is unilateral or judicial. It is essentially a matter of paying the expert and collaborating in the expertise. The expert’s obligations towards the parties may differ depending on the type of expertise. Only the judicial expert is a priori independent and impartial and only the expertise ordered by the court is a priori contradictory. However, examples provided by the French civil procedure show that an intervener appointed by a party can be independent of the latter and totally impartial. The arbitrator illustrates this point in particular. He is often appointed by a party when he will be subject to the said obligations of independence and impartiality. Other situations demonstrate that a procedure can be temporarily non-adversarial (e. g. proceedings on request). The Spanish procedure would therefore be a source of inspiration for our civil proceedings. This proves that unilateral, private expertise could be used even more than today to shed light on the religion of judges. Nevertheless, such an import would considerably strengthen the adversarial nature of the trial under French law and, in so doing, would perhaps go against the direction taken by the NCPC, which gives the civil judge an important role in the investigation.
  • On the other hand, while one generally wonders whether the expert has the right to say the law, the opposite question arises when reading the Spanish provision. Is the prospect of the judge becoming a technician not to be feared? The experts may indeed be called upon to discuss before him during the trial the terms of the private expert opinions. If the debate ends up becoming an engineering controversy, won’t the merits of the action end up being based on the presence of a technically protected claim? Doesn’t the judge making a decision based on extra-legal considerations contribute to relegating the lawyer?